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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 597332

Impartial Hearing Decision

April 10, 2023·(“District”) filed an expedited due process complaint against [REDACTED] the parent of a student with a disability. The complaint seeking an expedited hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”) and the New York State education Law § 4401, et. Seq, and 8 NYCRR 201.8(a) and 201.11 (a)-(d) of the Commissioner’s Regulations. I was appointed as the impartial hearing officer to hear the complaint.

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

In the Matter of Due Process Hearing Pursuant to Part 200 of the Regulations of the Commissioner of Education,

_______________________________ The [REDACTED] CSD

Complainant vs.

[REDACTED], on behalf of her daughter [REDACTED]

Respondent

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SED No.: 597332

[Pleading Title]

PROCEDURE

On March 6, 2023, the [REDACTED]district (“District”) filed an expedited due process complaint against [REDACTED] the parent of a student with a disability. The complaint seeking an expedited hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”) and the New York State education Law § 4401, et. Seq, and 8 NYCRR 201.8(a) and 201.11 (a)-(d) of the Commissioner’s Regulations. I was appointed as the impartial hearing officer to hear the complaint.

On March 20, 2023, [REDACTED][REDACTED], partner with the firm [REDACTED] the attorneys for the [REDACTED] District (“District”) filed an Ex-Parte motion via email requesting alternative service of the parent. He also indicated the District was available for hearing March 29 and March 30, 2023.

Mr. [REDACTED] attested that the District has made several attempts to serve [REDACTED], parent of the student, with a copy of the due process request for an expedited hearing. Specifically, as stated in the District’s motion for alternative service:

The district has attempted to serve the Parent with a copy of the Complaint on numerous occasions but has been unable to do so. 9. Service of the Complaint upon the Parent was attempted by a process server, Mr. [REDACTED], at her last-known address, [REDACTED]----, [REDACTED]. The address obtained by the process server was the address that the Parent uses to receive mail from the District. The process server made attempts at service on March 7, 2023, at 1:08 p.m. and 6:40 p.m. During that time, the process server heard people inside, but no one answered the door.

10. A subsequent attempt was made on March 9, 2023, between the hours of 7:15 and 9:15 a.m. During that two-hour period, the Parent refused to answer the door and did not leave the residence.

11. In addition, the District’s head security guard attempted service at the Parent’s address on March 13, 2023, at 2:25 p.m.

12. On March 14, 2023, at 11:15 AM, the head security guard and Mr. [REDACTED], who oversees District security, unsuccessfully attempted to serve the Complaint at the Parent’s address.

13. Another District security guard made the following attempts, unsuccessfully, at service at the Parent’s address on: March 14, 2023, at 7:00 p.m. and 8:00 p.m.; and March 15, 2023, at 5:00 p.m. and 7:45 p.m.

14. Thus, it is apparent that, although the Parent resides at, [REDACTED], she refuses to answer her front door or accept service.

15. Pursuant to the Commissioner’s Regulations, there are no alternative means of service proscribed or available.

16. Therefore, the District submits this motion seeking an alternative method of service upon the Parent.

17. The District believes that it is and will be impossible to obtain personal “by hand” service upon the Parent, and therefore, requests that the Impartial Hearing Officer provide an alternative method of service of the motion papers and Complaint.

18. The Parent, by her own tactics, is avoiding and evading process.

19. The Commissioner’s Regulations do not provide a remedy under circumstances such as this. 20. Therefore, the District is asking the Impartial Hearing Officer to direct the manner of service on the Parent and requests that service of this motion be made by overnight.

Section 200.5 of the Commissioner’s Regulations set forth due process procedures:

(i) Due process complaint notification requirements.

(1) A parent or school district may file a due process complaint with respect to 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. The party presenting the complaint, or the attorney representing such party, shall provide a written due process complaint notice to the party, (emphasis added) which shall include:

(i) the name of the student.

(ii) the address of the residence of the student or in the case of a homeless student as defined in section 200.1(hhh) of this Part, available contact information for the student and the name of the school the student is attending;

(iii) the name of the school the student is attending; (iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such proposed or refused initiation or change, including facts relating to such problem; and

(v) a proposed resolution of the problem to the extent known and available to the party at the time.

The Commissioner’s regulations are silent on service of the due process complaint. It merely states that the attorney representing a party making the complaint shall provide written due process complaint notice to the party. Accordingly, I directed the District to send the notice of their due process request by regular and express mail with return receipt and tracking number.

On March 23, 2023, I emailed the above decision and order to the parent and Mr. [REDACTED]with a copy of the District’s complaint which I also be deemed to satisfy the written notice requirement. I also indicated I was available both March 29 and 30 as hearing dates. The parent was also directed to submit an answer to the complaint by March 27.

The parent responded immediately by email indicating she was available for an in person hearing the morning of March 29, and that she was not going to submit a written answer to the complaint but would answer at the hearing.

On March 27, 2023, I emailed the parties scheduling the hearing for March 29, and advised the parties that the issue to be adjudicated at pursuant to an expedited complaint submitted by the district is limited to whether the student was likely to cause injury to self or others in the current placement and therefore should be transferred to an Interim Alternative Educational Placement (“IAES”).

The hearing was held March 29, 2023. The parent appeared at the hearing, pro se announced she was video recording the proceeding with her phone, and proceeded to challenge my impartiality because I limited the scope of the hearing based on the expedited due process complaint. I explained to the parent that her recording would not be part of the record, and the only record is that being transcribed by the court reporter. The parent continued to disrupt the hearing and refused to adhere to an orderly hearing process permitting the district to present their case. I attempted to explain to the parent that she would be afforded an opportunity to present a case, but she continued to shout over me, while videoing the proceeding. The parent continued to complain that the hearing should not be limited to the student’s behavior, and whether the student was likely to cause injury to self or others in the current placement. Additionally, the parent claimed she was being discriminated against and threatened to sue the district and me in federal court. The parent was advised of her rights to file a due process complaint against the district where she can raise whatever her concerns about the district providing a free and appropriate public education (“FAPE”)

I refused to proceed during the parent’s outburst and went off the record. The parent refused to continue with the hearing and left. I proceeded with the hearing.

FINDINGS OF FACTS

The student is classified with autism. The student enrolled in the District March 19,2019 from The [REDACTED] and was placed in the Career Pathways Special Class, a 15:1:1 program at [REDACTED], with a 1:1 paraprofessional.[1] (Dist. Exh. 11) The student did not attend school from September 2021 through February 2022. On February 3, 2022, the district sent a letter to the parent notifying her of the student’s removal from the enrollment roster due to lack of attendance effective February 7,2022. (District Exh. 19) The letter indicated the student was entitled to attend school until reaching the age of twenty-one and could re-enroll at any time until that point. The parent re-enrolled the student on March 23, 2022. The student attended school classes from March 29, 2022, through May 31, 2022.

2021-2022 School Year

[REDACTED], the District’s behavior consultant and a certified crisis prevention intervention (“CPI”) was called as the District’s primary witness. Ms. [REDACTED] testified the student has been on her caseload since 2019. Since this time, Ms. [REDACTED] observed the student’s behavior has changed in frequency and intensity. Ms. [REDACTED] attested regarding the student’s behaviors and various incidents. She indicated the student’s behavior since returning to the school had gotten more aggressive. For instance, Ms. [REDACTED]stated the student was aggressive and would grab somebody or hold on to somebody when the student wanted to be with the person. As time went on the student’s the intensity of the grabs increase with the student using more force. The holds were hurting people and often the people were not able to breathe because the student held them tightly. (TR. 29)

Ms. [REDACTED] developed the student’s Functional Behavior Assessment and Behavior Intervention Plan (“BIP”) and was responsible for training staff, and implementation of the FBA. According to the student’s Behavior Intervention Plan there has been an escalation in the student’s behaviors including biting, punching, kicking, throwing items at teachers, students, and elopement. (District Exh. 11) The following incidents were some of the behaviors reported during the student’s first two months at the school (District Exh. 6):

April 26, 2022- The student did not want to get on the bus. Eventually the student was talked into getting on the bus. The student entered the bus and grabbed the steering wheel. The aid was able to deescalate the situation by talking to the student. (Tr. 35)

April 27, 2022-The student was walking to her classroom when she stopped walking and stood still with no response for forty-five minutes. [REDACTED] attempted to get her attention by switching from getting her attention to planned ignoring strategies, a researched based intervention strategy. [REDACTED] was not able to get eye contact from the student or to get the student to comply by responding to simple questions. (Tr. 37) The school nurse and psychologist were called. Eventually school personnel had to call 911. The parent was called and met the EMT at the school. The parent student was taken to the hospital and the parent followed the ambulance.) The student did not return to the school for a few days. (Tr.39)

May 4 and 5, 2022- The student engaged in behavior for the first time when the student returned to the school. The student had episodes of laying stiff on the floor. The episode May 4 lasted an hour. [REDACTED] used the same strategy, ignoring the student to get the student to comply. [REDACTED] called the parent who stated the student has autism and mental health issues and surmised the student may be hungry. [REDACTED] offered the student water and food reinforcers-the student remained on the floor. (Tr. 43) [REDACTED] reported the student was placed in a wheelchair and brought to the parent to be taken home. The May 5 incident lasted two hours and eventually the student was able to return to class. (District exh. 6)

May 17, 2022- The student was walking down the hall with the paraprofessional assigned to the student. [REDACTED], the student’s speech therapist greeted the student. The student responded stating “I’m going where you go.” The student tightly grabbed the arms of [REDACTED] and kept repeating “I’m going where you go.” The student continued to hold [REDACTED]s wrists. [REDACTED] asked the student to let go; the student did not release her. [REDACTED] gave the student the choice to go to the break room or go to class. The student refused to go to class and would not let go of [REDACTED] wrists. [REDACTED] told the student that the student could come with her, then proceeded to walk the student to the break room. The student stopped and grabbed [REDACTED] by the torso and held her very hard and would not budge. Two people, [REDACTED] and [REDACTED], special education teachers on the student’s team, had to intervene and use a CPI hold- grab release to get the student to safely release the grip on [REDACTED]. The student was then taken to the alternate learning room or ISS. (Tr. 46-48)

The student eloped to the general education chemistry class running from the staff assigned to the student. The student refused to leave the classroom and blocked the door preventing [REDACTED] the classroom paraprofessional from leaving the room. When the student went to the middle of the class, Ms. [REDACTED] was able to exit the classroom and get assistance. The scholars in the class were very upset and scared. (Tr.50-52, District Ex. 6)

May 18, 2022- The student was halfway up the stairs when the student began refusing to walk and laid down in the stairwell. Three teachers intervened to get the student off the floor and walked the student to the ISS/ break room and placed the student in a seat. The student was agitated and tried to escape the room by jumping over the railing several times yelling “I wanna go”, “Leave me be” and “Let me go”. Mr. [REDACTED] was kicked several times by the student while attempting to keep the student seated.

[REDACTED] testified the student’s team used breathing strategies, language prompts to get the student to describe how the student feel or wanted as described in the behavior plan. The staff could not get the student to comply with them. (Tr. 53)

May 20, 2022- The student eloped to the cafeteria and tried get a bag of chips. The student grabbed the left arm of [REDACTED], paraprofessional causing injury and tried to push her out of the way. The student was escorted to a classroom next to the cafeteria. (District Exh. 2)

The student, while on the school bus, left her seat when the bus started to leave the parking lot. The student went to the front of the bus and put her hand on the steering wheel to stop the driver from driving the bus. [REDACTED] the driver told her to sit down several times. The student finally went back to the seat, and [REDACTED] started to drive the bus again. The student ran to the front of the bus, grabbed the steering wheel and the door handle, and exited the bus. Teachers escorted the student back to the school. (District Exh. 4)

May 24, 2022- The student was standing outside the front door when the student wrapped arms around the paraprofessional, [REDACTED]. [REDACTED] stated she could not free herself from the student, and the student continued squeezing her as they walked into the lobby. The student tried to trip [REDACTED] as the student continued to squeeze [REDACTED] harder. [REDACTED] claimed she could not breathe, and she felt her ribs may break from the pressure exuded by the student. [REDACTED] yelled that the student was hurting her, requiring other staff members to intervene to remove the student from [REDACTED]. The student was escorted to a classroom by [REDACTED] and the speech teacher. The student broke free and kicked the assistant principal, and scratched the speech teacher, drawing blood.

The student headed towards [REDACTED]’s class instead of the student’s first period class after being dropped off by the parent. The student tried to grab some cookies from [REDACTED]’s file cabinet. The student again pronounced the student’s intent to stay with [REDACTED]. [REDACTED] agreed to let the student stay with [REDACTED] to get the student to go to the break room. The student pulled away from [REDACTED] claiming that the student did not want to go to the break room. The student started to pull [REDACTED] into the cafeteria. [REDACTED] immediately intervened to release the students’ grip on [REDACTED]. (District Exh.6)

[REDACTED], Coordinator of High School Special Education testified the District received a letter from [REDACTED], psychiatric nurse practitioner treating the student. [REDACTED] opined the student has elevated anxiety and should be given homebound instruction through the end of the school year and into the summer. Based on this letter and the behaviors of the student, the student completed the school year on homebound instruction beginning May 31, 2022. (Tr. 170, 172; District Exh. 17 and District Exh. 18).

[REDACTED] sent a second letter dated June 15, 2022, confirming the student is diagnosed with autism spectrum and generalized anxiety disorder with periods of mood dysregulation. He further stated the student was placed on home instruction because of her elevated anxiety, depression, and behavioral issues. [REDACTED] recommended the student be placed in a therapeutic residential school that has a safe program to prepare for her transition to a post twenty-one program. The therapeutic placement should provide both medication management and therapy services at the same facility. (District Exh. 16 and District Exh. 12)

The Committee on Special Education (“CSE”) convened June 17, 2022, for the student’s annual review. [REDACTED] testified regarding the discussions at the CSE meeting. She indicated the student’s increasing aggressive behaviors, and elopement, made the student a danger to self, staff and peers in the student’s class. (Tr. 171, 173) Notwithstanding these concerns, the CSE recommended the student to continue to receive special education services for the 2022-2023 school year in the district. The CSE proposed for the summer 2022 the student continue in the Special Class Essentials 15:1:1, with Individual speech twice a week for 30 minutes, individual counseling twice a month for 30 minutes, behavior consultant twice a month for 30 minutes, and 1:1 paraprofessional. The CSE proposed for the September 2022 the Special Class Essentials 15:1:1 for English, Math, Science/Social Studies, Principals of work two periods, elective health every other day. Additionally, the student received: reading in 5:1 setting one period daily; adaptive physical education every other day; speech three times a week for 30 minutes individually; once in a 2:1 setting and once in a 3:1 setting; individual counseling twice a month for 30 minutes; counseling consult once a month for 30 minutes; behavior consultant four times a week for 60 minutes; 1:1 paraprofessional; child specific parent counseling and training once a week for 30 minutes, parent counseling and training twice a month for 60 minutes; and review the Behavior Intervention Plan (“BIP”) with the parent. The CSE would continue to explore out of district day and residential placements.[2] ((Tr. 176; District Exh. 14 and Exh. 15) The student continued to receive homebound services until the end of the summer (Tr.170). The student returned to in person class in September 2022. In the beginning of September two paraprofessionals were assigned to the student, [REDACTED], and [REDACTED].

2022-2023 School Year

September 12, 2022- The student eloped to a general education class during third period. Seventh and eight periods the student ran after [REDACTED] from the bathroom and refused to leave her side. [REDACTED] brought the student back to the classroom. The student attempted to kick [REDACTED], paraprofessional, in the face. The student was taken to [REDACTED]’s who called the parent. (District Exh. 6)

September 13, 2022- The student disrupted both the reading and science classes. In the reading class the student repeated “I want to kick, can I kick?” before the student sat down. Then the student yelled out “what would happen if I peed right here on the floor”. [REDACTED] the teacher asked the student if the student needed to go to the bathroom. The student said no” I want to piss my pants or pee on the floor, what will happen”. The student proceeded to spit on the classroom floor. The student tried kick [REDACTED] and [REDACTED], paraprofessionals. Two students were removed from the classroom by their paraprofessionals to prevent the escalation of the situation. (District. Exh. 6)

The student threw a small object on the floor in science class. The student then successfully completed class tasks and earned free time. The student then threw a popsicle stick at and hit [REDACTED], teacher in the face. [REDACTED] stated there were no predictable antecedents identified which would have predicted the student’s behavior, throwing the popsicle stick at the teacher. (Tr. 80) The student was escorted out of the room.

The student got on the bus without incident but after five minutes the student tried to leave the bus. The student was re-directed and sat back down on the bus.

September 14, 2022- The student ran to the front of the class to block a classmate from completing their presentation. The student refused to sit down, and the other scholars in the class had to be removed from the classroom because the student had become aggressive towards them. Again, there were no observable triggers to predict the behavior. The student was given an assignment to complete and would be able to resume with classmates when the assignment was completed. One of the strategies used with the student is to get the student to sit down and comply. (Tr.81) The student completed the assignment independently and was told to walk down the hall to third period class. The student attempted to elope several times and was returned to the second period classroom. The student wanted to rejoin the class and was told to sit and complete the assignment. The student threw two erase markers at the teacher and made a kicking gesture at the teacher. The student was removed from the class and escorted to the alternate learning environment by [REDACTED] and two paraprofessionals.

October 4, 2022- The student grabbed [REDACTED] around the waist while she was writing on the board. [REDACTED] asked the student to let go of her and sit down. The student refused and held [REDACTED] tighter. [REDACTED] told the student that [REDACTED] was not feeling well, and that the student was hurting her. [3]The student squeezed tighter. [REDACTED] was not able to get the student to let go of [REDACTED]. Mr. [REDACTED] and [REDACTED] were finally able to get the student from holding [REDACTED]’s waist and escorted the student out of the class.

Period eight, the student tried to climb onto the lap of [REDACTED]lake and wrapped her legs around the legs of [REDACTED]. The student grabbed both wrists of [REDACTED]. The student needed to be walked back to her seat by [REDACTED] and the paraprofessional. (Tr.90)

October 20, 2022- [REDACTED] was walking through the main lobby at approximately 6:45 pm when the student approached her to say hello. The student began repeating “I am with you tonight. Wherever you go I go, I want to stay with you tonight.” The student continued to follow [REDACTED] “closely and aggressively” and cornered her in the hallway. [REDACTED] did not move until the parent was able to restrain the student.

[REDACTED] noticed the parent was outside his door and was restraining the student. The parent was scheduled for a 7:15pm meeting with [REDACTED]. The parent became upset during the conference because [REDACTED] requested [REDACTED], the supervisor, to sit at the conference. The parent began to record the meeting on her telephone demanding answers. As the situation escalated, the student who was present began to throw tables, screamed, and picked up [REDACTED]’s laptop and smashed it on the desk. The incident spilled over to the hallway, and security was called.

[REDACTED] heard the screaming in the main lobby and was told by someone in the main office that the student was screaming, and the police had been called. [REDACTED] asked [REDACTED] to intervene with the student. [REDACTED] observed the student was visibly upset, crying, screaming, shaking, and sweating. The student was surrounded by three security officers, and the parent was capturing the incident on video, and yelling that the student was being treated unfairly. [REDACTED] asked security to step back while she used breathing and other strategies to calm the student. [REDACTED] walked the student outside to the car after the student calmed down. Four police cars arrived on the scene and the parent continued to make comments escalating the students’ anxiety. [REDACTED] asked the officers to step back while she continued to intervene to get the student to deescalate behavior. Eventually the student got into the car with the parent without further incident. (District Exh. 6).

November 1, 2022- The student grabbed a classmate and held her by the waist during speech class. The classmate told the student that the grip was hurting her, and to let go, but the student would not let go. The classmate was teary and scared. [REDACTED] and [REDACTED] both had to release the students’ grip. (Tr. 106)

The CSE met November 2, 2022. [REDACTED] said the student was a perfect fit for the 15:1:1 life skills program when the student entered the program. He opined however; the student’s behaviors are interfering with her ability to be successful in a school setting. The student’s behaviors include elopement, verbally and physically threatening behavior, kicking, throwing objects, and damaging property. The student’s behavior is such that the student’s peers do not want to engage with the student. (District Exh. 10) [REDACTED] talked about the student’s aggressive behaviors, and the Behavior Intervention Plan. She attested the BIP had been updated five times and the district has yet to find behavior strategies effective in managing or reducing the student’s physical behavior. The student was assigned two paraprofessionals, both were out of work because of injury. The two paraprofessionals were replaced by two certified special education teachers. Assigned to the student are the two special education teachers and the [REDACTED]-, behavior consultant. Two people are always with the student during the school day. (Tr. 111-113)

November 16, 2022- The student punched the driver’s assistant in the head, yelling repeatedly that she was not going to get off the bus. The driver’s assistant had to be examined by the school nurse. (Tr. 120) The student finally exited the bus after being told the bus would not move while the student remained on the bus. The parent had to get the student.

November 23, 2022-The student while signing into art class threw a hot glue gun against the wall and took a hydro flask filled with water from a teacher’s bag and threw it down an occupied hall.

At 3:30 pm the student sat straddled on a staff’s lap face forward, with arms hugging the person’s neck. [REDACTED] had to release the student’s arms and redirected the student to her office. The student picked up a decorative rock and tried to throw it at [REDACTED]. The paraprofessional removed the rock from the student’s hand. The student subsequently threw her cell phone against the wall. (District Exh. 6, Tr.124)

December 2,2022- The student punched [REDACTED], paraprofessional assigned to the student in the eye bruising the eye. (District Exh. 23; Tr. 127) The assault was unprovoked, and [REDACTED] had to go to the hospital for further evaluation and x-ray. [REDACTED] was called to assist in removing the student from the room. Upon [REDACTED] arrival, the student continued to kick and be aggressive. [REDACTED] and [REDACTED] escorted the student to the time-out room where she remained with the student until the bus picked her up. [REDACTED] and [REDACTED] accompanied the student on the bus because of the intensity of the students’ aggressions. (Tr.128) The student kicked [REDACTED]. The student punched [REDACTED] on the side of his head and in the ear. (District Exh.6; Tr. 126)

December 16,2022- The student was on a school trip at [REDACTED] Mall and eloped and ran toward a toddler at the food court. The student was stopped by staff before reaching the toddler.

The student was taken to the bus parked outside the mall.

After returning to the school, the student was still agitated, quiet and did not want to engage in any conversation. [REDACTED] testified she gave the student the option of where to sit in the classroom and asked if the student was interested in coloring. The student stood straight and did not speak. [REDACTED] indicated she was standing next to the student waiting to see if she would respond to any of the offers. [REDACTED] stated the student did not say a word and turned toward her and kicked [REDACTED] in the shin with full force. The student was wearing boots.

[REDACTED] stated she went to an orthopedic doctor after being in pain for two weeks with the injury. [REDACTED] reported she was diagnosed with a bone bruise from the kick, and that it would take three months to heal. (Tr. 136-138; Dist. Exh. 22)

January 11, 2023- The student refused to get off the bus when it arrived at the student’s home. [REDACTED] told the student the bus had to leave, and the student got off the bus. The student proceeded towards her apartment building door, then turned around and ran into the street. The student ran to a car stopped in the road waiting for the bus to release stop signs, and started punching the driver’s side window, yelling “let me in”. [REDACTED] ran over to the student and stood between the student and the car. The driver was visibly scared and shaking in fear. The student apologized and stated “I ‘m sorry I didn’t mean to do that”. (Tr. 146-147; District Exh. 6)

January 20,2023- The student became stressed during a lab activity in science and started clenching her fists. Both [REDACTED] and [REDACTED] asked the student if she needed a break. The student raised a pencil and made a stabbing motion at [REDACTED]’s hand. [REDACTED] deflected the student’s arm, then got behind the student restraining the student in a CPI hold. The student was directed to drop the pencil and was placed in a chair. The student kicked [REDACTED] in the leg. [REDACTED] and [REDACTED] helped to stabilize the student a chair. The student repeatedly scratched and pinched [REDACTED]’s left hand, breaking the skin and causing his hand to bleed. [REDACTED] and [REDACTED] transported the student to the timeout room. (Tr. 148; District Exh.6)

January 23, 2023- The student was at the table coloring when the student ran across the room and kicked [REDACTED] in the leg. [REDACTED] indicated the student had kicked her in the same spot as the December 16, incident resulting in further injury to the leg. (Tr.139) [REDACTED] went back to the doctor, where she had an MRI and was diagnosed with compartment syndrome. The doctor directed [REDACTED] to get off her leg, and not to report to work for two weeks. (Tr. 140) [REDACTED] was also referred to six months’ physical therapy. [REDACTED] testified she is still experiencing pain and suffering from her injury and was only cleared to return to work if she agreed not to be in close proximity with the student to prevent further attacks.

On February 1, 2023, the District gave written notice to the parent of its intent to file an expedited due process complaint. (District Exh. 7) This complaint was withdrawn without prejudice. The instant complaint was filed March 6, 2023.

DISCUSSION

IAES is "a temporary educational placement, other than the student's current placement at the time the behavior precipitating the IAES placement occurred" (8 NYCRR 201.2[k]).  As part of a disciplinary proceeding, a superintendent may remove a student with a disability to an IAES if the student's conduct involved serious bodily injury, weapons, illegal drugs or controlled substances (20 U.S.C. § 1415[k][1][G][i]-[iii]; 34 CFR 300.530[g]; 8 NYCRR 201.7[e]).  Additionally, if a district requests an expedited hearing, an IHO may order a placement to an IAES even if the student is not subject to a disciplinary proceeding if the IHO determines "that maintaining the current placement of the student is substantially likely to result in injury to the student or to others" (8 NYCRR 201.8[a], [c]; see 20 U.S.C. § 1415[k][3][A]-[B]; Educ. Law § 3214[3][g][3][vii]; 34 CFR 300.532[c]; 8 NYCRR 201.11).  An MDR meeting must be conducted within 10 school days after a superintendent or IHO decides to place a student in an IAES (see 8 NYCRR 201.4[a][1]-[2]).  A student who is placed in an IAES shall "continue to receive educational services so as to enable that student to continue to participate in the general education curriculum... and to progress toward meeting the goals set out in the student's IEP" (8 NYCRR 201.2[k][1]; see 20 U.S.C. § 1415[k][1][D][i]; 34 CFR 300.530[d][1][i]; 8 NYCRR 201.10[d]). (SRO No. 21-091)

If a student is at risk of harm, and the district believes that maintaining the current placement of the student is substantially likely to result in injury to the student or others, the district (though not the parent under these circumstances) may initiate due process and request that the IHO move the student to an interim alternative educational setting (IAES) (34 CFR 300.532[a-b]; see Letter to Huefner, 47 IDELR 228 [OSEP 2007] [noting that an LEA may renew an IAES request to a hearing officer for subsequent 45 day periods under section 300.532]). The IHO, as a result, has the authority to order a temporary change in placement of the student to an appropriate IAES for up to 45 days, and the procedures may be repeated if the district believes that returning the student to the original placement is substantially likely to result in injury to the student or to others (34 CFR 300.532[b]; see also Timberlane Reg'l Sch. Dist., 45 IDELR 139 [in which an IHO ordered the removal of a 14-year-old student with Type I diabetes, non-verbal learning disability and a possible emotional disability to an IAES for a complete evaluation]).  The IHO in Timberlane further directed the parents to cooperate by releasing requested records and to apply for the student's admission at the district's chosen placement (id.). Once the diagnostic placement was complete, the IHO ordered the district to convene an IEP team to determine an appropriate placement for the student (id.).  However, even the IAES provisions are limited and do not completely supplant the stay-put provision because once the 45-day period elapses and the school fails to make a new IAES request to a hearing officer, the school cannot thereafter exclude the student from his or her then-current educational placement (see Olu-Cole v. E.L. Haynes Pub. Charter Sch., 292 F. Supp. 3d 413, 419 [D.D.C. 2018]).  As noted above however this type of IAES addressing circumstances involving a substantial likelihood of injury is limited to school district requests, thus while factually closer to what the parent is alleging, the parent may not avail herself of this provision and then claim it as pendency. (SRO No. 19-033)

The District argues it cannot safely maintain the student in the current placement. The District admits the current school placement no longer provides the student with a free appropriate public education. The District through this expedited due process request, seeks to remove the student from the current 15:1:1 Career Life program, and place her in an IAES. Specifically, the District wants to provide virtual home instruction with special education related services, pending placement in an appropriate out-of-district residential setting.

An IHO may order the placement of a student in an IAES not to exceed 45 days if the District can demonstrate the student continuation in the current placement is likely to cause injury to the student or others. The record is replete with incidents where the student has attacked staff, causing bodily injury. Some of the more severe incidents where the student caused physical injury to staff are:

  • • November 16, 2022- The student punched the bus matron in the head, yelling repeatedly that they were not going to get off the bus. The bus matron had to be examined by the school nurse.
  • • December 2,2022- The student punched [REDACTED], paraprofessional assigned to the student in the eye bruising the eye. (District Exh. 23) The assault was unprovoked, and [REDACTED] had to go to the hospital for further evaluation and x-ray.
  • • January 20,2023- The student raised a pencil and made a stabbing motion at [REDACTED]’s hand. [REDACTED] deflected the student’s arm, then got behind the student restraining the student in a CPI hold. The student kicked [REDACTED] in the leg and repeatedly scratched and pinched [REDACTED]’s left hand, breaking the skin and causing his hand to bleed.
  • • January 23, 2023- The student kicked [REDACTED] in the leg. [REDACTED] indicated the student had kicked her in this leg on December 16, resulting in further injury to the leg. [REDACTED] had to seek medical attention and sustained bruised nerve and tendon damage in the leg. (District Exh. 22) The doctor directed [REDACTED] to stay home and not to report to work for several weeks. [REDACTED] was also referred to six months’ physical therapy.

The student also has a history of elopement. For instance, the student eloped to the cafeteria and tried to get a bag of chips. The student grabbed the left arm of [REDACTED], paraprofessional causing injury and tried to push her out of the way. The student was escorted to a classroom next to the cafeteria. Then September 12, 2022- the student eloped into a general education class during third period. The student was on a school trip at [REDACTED] Mall December 16, 2022 and eloped and ran toward a toddler at the food court. The student was stopped by staff before reaching the toddler.

[REDACTED], psychiatric nurse practitioner treating the student recommended the student’s placement in homebound services to complete the 2021-2022 school year. He further opined the student should be placed in a therapeutic residential school that has a safe program to prepare for her transition to a post twenty-one program. (District Exh. 16 and District Exh. 12) [REDACTED] testified the student’s BIP had been adjusted five times, and she was not able to identify the antecedents which would predict the student’s behavior. [REDACTED] admitted the strategies and methodologies used to improve the student’s behavior were unsuccessful.) [REDACTED] concluded the student’s increasing aggressive behaviors, and elopement, made the student a danger to self, staff and peers in the student’s class if she continues in the current placement. (Tr. 171, 173)

Accordingly, I find the District has established the student is a danger to self and others in the current placement and therefore should be removed to an IAES not to exceed 45 days. The District may repeat these procedures if the district believes that returning the student to the original placement is substantially likely to result in injury to the student or to others (34 CFR 300.532[b]; see also Timberlane Reg'l Sch. Dist., 45 IDELR 13

Accordingly, I hereby Order:

  • • The [REDACTED] CSD shall immediately convene the CSE to develop an appropriate interim alternate educational setting for the student; virtual home instruction with virtual delivery of special education related services for not more than 45 school days. If the CSE does not find an appropriate residential placement after 45 school days, the District may renew an IAES request to a hearing officer for subsequent 45-day periods under section 300.532]). I will retain jurisdiction.
  • • The CSE will continue to search for an appropriate residential placement for the student.
  • • The parent to cooperate and release requested records to enable the District to apply for the student's admission at out of District residential placements.

Dated April 10, 2023

Denise Washington, Impartial Hearing Officer

NOTICE OF THE 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 the 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.

Footnotes

[1] The student will turn 21 June 19,2023 and pursuant to New York Law will age out of IDEA special education services June 30, 2023.

[2] The District applied to eight-day programs and nineteen in-state residential programs. The student was rejected from all day and in-state residential programs. The student has also been rejected from five out of state residential programs. (District Exh. 18)

[3] Ms. F had surgery and had stitches in her stomach.