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CASE NUMBER: 597469 - NYC: 246656
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: 8/19/2006
School District: New York City Department of Education (“District”)
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 3/14/2023
Date(s) of Hearing: 4/17/2023
Actual Record Close Date: 4/28/2023
Date of Decision: 4/28/2023
Date of Distribution: 4/28/2023
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 4/4/2023:
For the Student:
[REDACTED], Pro Se (Parent)
For the Department of Education:
REDACTED, Esq., Attorney for Respondent (District)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 4/17/2023:
For the Student:
[REDACTED], Pro Se
For the Department of Education:
REDACTED, Esq., Attorney for Respondent
[REDACTED], School Psychologist (Psychologist)
INTRODUCTION AND PROCEDURAL HISTORY
Petitioner, the student’s parent, filed a Due Process Complaint (DPC), pro se, on 3/14/2023 against the respondent/district. [1]
The DPC alleges multiple procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA)[2] resulting in a failure to a) identify the student as one suspected to have a disability, b) initiate and conduct an initial assessment in response to the parent’s request, c) assess the student in all areas of suspected disability, and
d) create an Individualized Education Program (IEP). Additionally, the parent appeals the Manifestation Determination Review (MDR) by the district of the student’s suspension from 02/27/2023 to 03/20/2023. 3 In addition, the parent alleges that despite her verbal notices to the school about her daughter’s mental health and need for in-school counseling, the school neither started the IEP process nor provided counseling. As a result of this delay, the student’s mental state deteriorated, which had a direct and substantial relationship to the student’s behavior on 02/27/2023. [4]
I was appointed as the Impartial Hearing Officer (IHO) to hear this case on
3/15/2023. A resolution meeting was held, without success, on 03/20/2023.[5] The pre-hearing conference was held on 3/23/2023. The parent appeared pro se, and the district appeared by an attorney. The parties agreed to schedule the due process hearing for 04/04/2023. The IHO advised the parent that since this was a disciplinary hearing, the last day to hold the hearing was 04/20/2023 6 and could not, by law, be extended. The IHO provided the parent with a list of low-cost and no-cost advocates and attorneys, as well as a guide to conducting the due process hearing without an attorney. [7]
On 03/31/2023, the district served a witness list without disclosure.[8] On 04/04/2023, the district appeared on time, but the parent did not. The IHO contacted the parent by telephone, who then joined the hearing. The parent advised the IHO that she thought the hearing was scheduled for 4/20/2023 and that she had an appointment with an attorney at 4:00 P.M. The parent stated that she had difficulty finding an attorney due to the strict timeline. The hearing was then adjourned to 04/17/2023 for the parent to consult with an attorney later that day. The parent was once again advised that this hearing could not be further adjourned. 9 A supplemental Pre-Hearing Conference Order was issued and sent to all parties with the WebEx invite for the 04/17/2023 hearing date. 10 The invite advised the parent to provide a copy of the order to the attorney.[11] On 04/10/2023 (the disclosure due date), the IHO emailed the parent inquiring whether she had retained an attorney for the hearing.[12] The IHO did not receive a response to this email.
6 T22:lines 7-9. It is noted that the date of 4/20/2023 was the last day to hold a hearing due to the intervening non-school days from 04/06/2023 to 04/16/2023 (the Passover/Easter school recess). However, the IHO has 10 school days after the hearing to issue the decision. Therefore, the decision is due by 05/02/2023 due to the district’s closure on 04/21/2023 in observance of a religious holiday. The record inadvertently reflects that the decision was due by 04/20/2023 (T32:18-23).
On 04/12/2023, the district served its disclosure.[13] Upon review of the disclosure, the IHO requested the following information from the district that same day:
1) Ms. [REDACTED] counselor, Dean [REDACTED], and Dean [REDACTED]be available for clarifying questions.
2) DOE Exhibit 1 appears to be part of an email chain. I am requesting that the complete email chain be forwarded to my attention prior to the hearing.
3) An enlarged and clear copies of pages 3 and 4 of DOE Exhibit 3.
4) Identify the author of pages 8 and 9 of DOE Exhibit 3.
5) DOE Exhibit 3, page 10, is part of a larger document. Please provide a complete copy of the 11/17/2022 entry that appears on page 10. [14]
The district responded on 04/13/2023 as follows: Respectfully I understand your request, however, it’s the DOE’s position that these witnesses [REDACTED] are unnecessary as the witness testifying will suffice. Nonetheless, I have reached out to them and am awaiting their responses, but the DOE is on spring break this week so it is difficult to get in touch with school staff.
Attached is an enlarged/clearer copy of exhibit 3. I also included a clearer copy of exhibit 4. My apologies as when I was bate stamping the documents they somehow got distorted.
As for the other issues, I have reached out to the school officials to request further clarification/information as requested and am awaiting their response. If I get them before the hearing on Monday (also when school resumes), I of course will forward them immediately.
I also attached Ms. [REDACTED] affidavit – the delay was again due to the fact that this week the DOE is on vacation and she had to review/sign it. It is not notarized but I am hoping we can just swear her in on the record. [15]
In this email, the district stated, “Ms. [REDACTED], please let me know if you are in receipt of the DOE’s disclosures (previously sent) and/or if I should forward disclosures and affidavit to an attorney.” The parent did not respond.
On the morning of the hearing, the school counselor forwarded the requested email chain but did not respond to any purported request by the district for her availability to testify at the hearing on 04/17/2023. 16 The district did not offer evidence that the availability of the counselor was requested prior to or on the morning of the hearing. It was not until the conclusion of the psychologist’s testimony that the district tried to confirm her availability. 17 The school counselor never responded to the email. The district also did not present evidence that they requested the deans to be available for the hearing. It is noted that the district repeated its position that they deemed the psychologist’s testimony as sufficient after she finished testifying. 18 The parent did not appear for the hearing at its scheduled time of 10:00 A.M. Therefore, the IHO called the parent at 10:38 A.M. The phone was placed on speaker phone with the WebEx recording on. At that time, the parent stated that she thought the hearing was scheduled for 04/20/2023. 19 She then connected to the hearing by telephone using the WebEx call-in information. The IHO advised the parent that if she retained an attorney, the attorney had not contacted either the IHO or the district. The parent sent a text to an attorney she had consulted with to determine if he/she was available to connect to the hearing.[20] The parent then forward without the attorney because she provided the wrong hearing date. [21]
The district and parent each presented an opening statement. 22 The school psychologist was sworn in as a witness and attested to the truth of the content of the affidavit before being cross-examined by the parent. 23 The psychologist was then asked re-direct questions by the district and clarifying questions by the IHO. 24 The parent presented direct testimony in the form of a narrative, was cross-examined by the district, and asked clarifying questions by the IHO. 25 The district presented a closing statement, 26 and the parent elected to waive a closing statement. 27
JURISDICTION
This due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA (20 U.S.C. § 1400 et seq.) and 34 C.F.R. § 300 et seq.; § 504 of the Rehabilitation Act of 1973; New York State Education Law § 4404 et seq.; and 8 NYCRR § 200.5 et seq.
The undersigned IHO is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (OATH) and meets all the qualifications and requirements outlined in both federal and state statutes which grant the IHO the authority to adjudicate this hearing.
BACKGROUND
As of the due process complaint filing, the student was REDACTED years old and in the 11th grade with the status of a 10th grader.[28] Prior to the student being suspended twice in less than two weeks in November 2022, the parent verbally notified the school that the student was undergoing outside psychiatric treatment/evaluation and requested an evaluation and help from the school. This request was repeated at the 11/18/2022 suspension conference. However, the school “kept delaying” the evaluation 29 or help in the form of counseling. On 02/16/2023, the parent followed up on this verbal request with a written email request for the evaluation. 30
The incident leading to her suspension occurred on 02/27/2023. The student was subjected to random scanning and found to be in possession of pepper spray and a 2.5-inch knife.[31] The student was disciplined with a Superintendent’s Suspension and removed from the school from 02/27/2023 through 03/20/2023.[32] It was not until the student was suspended on 02/27/2023 that the school considered this a “serious matter” and started the evaluation process on 03/01/2023.[33] The MDR determination dated 03/10/2023 stated that the behavior leading up to the 02/27/2023 incident was neither caused by nor had a direct and substantial relationship to the student’s disability.[34] The parent then filed the DPC on 03/14/2023. The parties attended a resolution meeting, but the parent rejected the proposed resolution agreement. 35
ISSUES
a) The Parent’s Issues:
The parent seeks a determination that the district’s procedural violations of the IDEA were the substantial cause of the events on 02/27/2023.[36] Specifically, the district did not start the process of convening a CSE meeting in response to her verbal requests from October 2022 through December 2022. As a result of the district’s failure to evaluate the student and provide counseling, her behavioral issues escalated as her mental health deteriorated. Therefore, her mental health was the cause of her behavior on 02/27/2023.[37] In her pro se complaint, her requested relief is stated as “I would like to [have] a hearing on the MDR. I am appealing the MDR.” 38 b) The District’s Issues The district defended its MDR determination that the behavior of 02/27/2023 was neither caused by nor had a direct and substantial relation to a disability. The district further contends that its first notice of the parent’s request for services was the 02/16/2023 email. Further, as the student has served the suspension, the issues in the DPC are moot. However, in response to the IHO’s inquiry as to the district’s possible violations of the “child-find” provisions of federal and state law, the district asserts that it is not an issue because it was not pled in the complaint. Still, notwithstanding this fact, it is a moot issue since the IEP evaluation process has begun. Therefore, the determination should stand.
FINDINGS OF FACT
After a full review of the record developed at the hearing and the written submissions, I make the following findings of fact.
a) The student’s behavior from September 2022 through November 2022. The student is a REDACTED-year-old girl in the 10th grade with a cumulative grade point average of 58.42% 39 and is not on track to graduate high school.[40] Since the start of the 2022/2023 school year, the student has had a history of absences, and lateness. [41] When she was present in school during October 2022, the student was loitering in the stairwell, cutting classes, 42 skipping detention, engaging in inappropriate behavior in the stairwell, and on 11/05/2022, was vaping a controlled substance at school, resulting in the student being taken from the school in an ambulance to the hospital. 43 The student received a principal’s suspension for these infractions. [44]
On 11/14/2022, the student informed the dean that another student was bullying and taunting her on social media and in school. These posts and texts were made after the dean allegedly had instructed the offending student to cease any conduct in violation of the Discipline Code and Chancellors Regulations towards the student.[45] The dean documented that the offending student posted the following on social media:
[Student’s] mom filed a bullying report about me to the board of education, and I swear to god, LMFAOOOOOOOO THEY CALLED MY DAD WE WERE LAUGHING. Additionally, several photos of who appears to be [Student] and another student [ ] walking in the hallways of [REDACTED] High School were posted…also posted several messages allegedly directed at [Student] which state “this is you? ur f***g ugly, holy f***, this you too, f***g weirdo, dirty a** The next day, a fight ensued at school between student and the offending student. According to the parent, the fight started when the student started to record the other student, who was barking and screaming vile obscenities and disparaging names at the student in school.[47] The parent testified that the student was making the recording to play for the school officials because they did not believe her.[48] The offending student then started punching the student, who fought back by punching the other student and pulling the other student’s hair. This incident was recorded on school video surveillance. 49 The school documented that the incident “substantially interfered with the mental and emotional well-being of the student” based on her “anxious and distracted demeanor when discussing the incident.” [50] The parent testified that the school never discussed the vaping overdose incident with the parent, focusing only on the fight on 11/15/2022 during the 11/18/2022 conference. I find this testimony credible based on the documentary evidence submitted by the district. The dean’s log and notes are devoid of any reference to a meeting or discussion regarding the aftermath of the vaping overdose incident on 11/02/2022.
The parent further testified that the bullying was not taken seriously by the school because, in their opinion, words cannot hurt you. 51 Additionally, the parent testified that
46 DOE-3:10
her daughter needed psychiatric help, but that she needed to talk to someone in the school. She also informed the school counselor of the student’s psychiatric problems of ADHD and depression but that she had not yet received a report. I find that in the face of these two incidents 13 days apart, the school failed to identify this student as having a suspected mental health disability.
The counselor informed the parent that the school would provide the student counseling but never followed through. According to the parent, she continually spoke to the school counselor about getting counseling in school and having her daughter evaluated. Nevertheless, she was eventually informed by the school counselor that it would need to wait until after the winter holidays because the school was busy at that time of year. The parent testified that she once again contacted the school counselor after the holidays, only to be told that “I'm going to try and mention it to her [the school psychologist]. I know they're backed up. They have a lot of work. They have a lot of students here, but I'm going to try and mention it to her.” [52]
In the meantime, the parent testified that her daughter became paranoid and afraid to go to school because “she does not know who’s going to be around the corner” or “attack her.”[53] In response to the parent’s safety concerns, the school staff responded that there were too many students in the school in relation to the number of staff personnel.
The psychologist testified in her affidavit that she was “familiar with the student because I participated in the Manifestation of Determination meeting that resulted in a examination, she testified that the first time she learned of the student was the date the parent “wrote the letter to open up for an evaluation.”
I find this testimony not credible. The contradiction between the two statements notwithstanding, the complete copy of the email chain requested by the IHO reveals that the school counselor had a conversation with the psychologist on or about 01/25/2023 regarding the student. 55 The conversation between the two was the direct result of the email sent by the parent on that same day requesting where to “send the paperwork.” 56 Later during cross-examination, the psychologist recanted her prior statement and testified that the first time she learned of the student was “probably sometime in January.”[57] The psychologist admitted that the school counselor reached out to her to let her know that the parent wanted an evaluation. I find that based on the student’s history, the psychologist should have initiated the evaluation under the “child-find” provisions of the IDEA and the Commissioner’s Regulations, notwithstanding the school counselor’s failure to do so on or after the 11/15/2022 incident.
Further, I find that the district did not provide the parent with information to start the IEP evaluation process despite being on notice that the student was suspected of having a disability and in need of an evaluation of, at a minimum, counseling services in response to her continuing verbal requests starting after the 11/18/2023 meeting through December 2022. This is corroborated by the parent’s testimony that it was not until she
54 DOE-10:1, par. 7 quickest” that she learned she needed to write a formal letter. [58]
I find the psychologist’s testimony not credible on another basis. On cross-examination by the pro se parent, the psychologist testified that she did not have enough information to form an opinion about whether the student had “red flags” with respect to the drug overdose at school. 59 The psychologist tried to avoid the question by responding, “I know [the student] had some issues at the beginning of the school year, which many teenagers experience.” When the parent pressed her further on cross-examination, the psychologist admitted that “many students” are not taken from the school by ambulance due to a drug overdose. [60]
The psychologist testified that one method for identifying students suspected of having disabilities is the monthly staff meetings. These meetings discuss struggling students and the need for response to intervention (RTI). She further testified that a student can also be identified as having a disability if a referral is made by a guidance counselor who sees a student is struggling. Here, I find that despite extensive knowledge of the student’s struggles from September through November 2022, the school counselor never made an independent referral. According to the psychologist, this student was never specifically discussed during a RTI meeting.
I find that based on the entries in the dean’s log 61 coupled with the contradictions of the psychologist’s testimony, and the email chain dated 01/25/2023, the parent’s testimony is credible that the school was aware that her daughter was, at the very least, a student suspected of having a disability, diagnosed or otherwise, prior to the events of 02/27/2023.
Therefore, the totality of the evidence establishes that the deans and the school counselor were on notice that the student should have been referred for an IEP evaluation as early as the 11/02/2022 hospitalization but no later than the discovery of the social media posts two weeks later that “substantially interfer[ed]with the student’s mental and emotional well-being as evidence[d] by her anxious and distracted demeanor.” 62 The psychologist was on notice of her obligation for the referral as early as 01/25/2023. Accordingly, the school failed to identify this student as one with a suspected disability. The district’s defense that the parent’s first written notice was on 02/27/2023 is without merit.
62 DOE-3:9
b) The student’s history from December 2022 through February 27, 2023. From December 2022 through February 2023, the student continued to be absent and late for school.[63] On 02/15/2023, the student was yelling inappropriate things across the room at the student involved in the bullying.[64] The other student reported that the student had recently threatened in a text message to “beat the ___ out of her.”
On the next day, the parent submitted a written request for an evaluation which was nine (9) days prior to the incident resulting in the Superintendent’s Suspension. The student entered the school in possession of pepper spray, which is defined as a dangerous chemical under the Chancellor’s Regulations, and a knife with a 2.5-inch blade. 65 The MDR noted that the student had a history of infractions, including “failing to be in one's assigned place, cutting class, using controlled substances, engaging in physically aggressive behavior, [and] engaging in disruptive behavior which creates substantial risk or results in injury.” [66]
At the MDR, the parent reported that she “believes that a woman needs to protect herself.” The parent has never denied this fact.[67] Over February break, [the student] went on the city bus with her friends to the mall. [The parent] was aware that she had pepper spray in her bag over February break but was unaware of the knife.[68] She also believes that the student’s difficulties with focusing, paying attention, and finishing tasks on time, coupled with her emotional difficulties, caused her to forget that she had pepper spray and a knife in her bag. However, the psychologist, social worker, and dean disagreed that bringing a weapon to school is related to the student’s documented challenges, especially in light of the fact that the student lacked a documented medical diagnosis. [69]
The parent signed the consent to an evaluation on 03/29/2023. 70 According to the psychologist, it is the school’s practice not to perform their own evaluations of a student until they receive the parent’s evaluations.[71] As of the date of the hearing, the parent testified she has been unable to obtain the written results because she must make an appointment on a Monday or Friday to meet with the doctor and have the student present. 72
The psychologist testified that since returning from the suspension, the student has been attending counseling with the school social worker every day during lunch, resulting in an improvement in her attendance and schoolwork. [73]
c) The MDR Determination dated 03/10/2023. The pertinent sections of the MDR Worksheet reads as follows:
Question 3. Based on your review of the documents and any other information about the students [sic] behavior that was discussed, describe the student's disability and how it affects the student's behavior (i.e., disability-related behavior). The Team must look beyond the disability classification and generalizations about the classification to discuss how the specific characteristics of the disability are evidenced with this student. Answer: School psychologist, social worker, and dean believe that bringing a weapon to school is not related to [Student’s] documented challenges. [Student] does not have any diagnoses on file. [Student] does not like school and does not attend class regularly. [Student’s] mother requested a special education evaluation on February 16, 2023 due to difficulty focusing, paying attention, and finishing tasks on time. Parent believes that her daughter has emotional difficulties and this This paragraph is repeated throughout the worksheet in response to most questions. The school failed to complete question 9, 75 and there is no indication that the parent was provided with a notice of her right to appeal the determination.
I find that the MDR determination was improper and should be expunged from the student’s record. The school made a sweeping general statement that the “student does not like school” without a foundation and failed to consider or even include in the MDR worksheet the student’s history to determine whether her suspected disability, i.e., mental health issues of depression and ADHD, exacerbated by the taunting, threats, and bullying, prompted the student to carry a knife and pepper spray in her bag. The paranoia and deteriorated mental state of the student, as testified to by her mother, impaired the student’s ability to make rational choices. The incident occurred on Monday, 02/27/2023. Therefore, I find the parent’s testimony credible that the student was carrying these items that weekend on her trip to the City to protect herself. I also find that assuming arguendo the student did not forget the items were in her bag, her mental state and paranoia prevented her from understanding the consequences of her actions out of fear for her safety, despite any inconsistent statements by the parent. I find that instead of focusing on the student’s state of mind as a result of the constant torment she endured from this other student, the school focused on the parent’s statements and actions. Finally, it is noted that despite the IHO’s request for the school counselor and the deans to testify at the hearing, the district failed to have these witnesses appear to either
74 DOE-4-2
75 DOE-4:4
These are the individuals who have knowledge of the student’s history and were on notice that the student was suspected to have a disability as early as November 2022. Therefore, I a drawing a negative inference from this lack testimony. I find that had these witnesses testified, the testimony would not have been favorable to the district’s case and, moreover, would have contradicted the psychologist’s testimony.
CONCLUSIONS OF LAW AND ANALYSIS
a) Burdens of Proof, Persuasion, and Production The school district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced pursuant to the IDEA, with one exception not at issue in this case.[76] Therefore, the district must establish an entitlement to a judgment in their favor by a preponderance of the evidence,[77] to wit: evidence that is of greater weight or more convincing than the evidence offered in opposition to it. [78]
b) “Child Find”
“The purpose of the ‘child find’ provisions of the IDEA are to identify, locate, and evaluate students who are suspected having a disability and thereby may need special education and related services, but for whom no determination of eligibility as a student with a disability has been made.”[79] This is an ongoing, affirmative duty to ensure that students receive needed special education services,[80] even though they are advancing from child,[82] but rather, the district must have procedures in place to identify, locate, and evaluate such children. [83] This duty to evaluate arises when the district has reason to suspect a disability and the need for special education services.[84] A child find violation occurs when the district overlooks clear signs of disability and a) is negligent by failing to order testing or b) has no rational justification for the decision not to evaluate the student.[85] The child find procedural safeguards are in place to ensure that students with special needs receive a Free Appropriate Public Education.
A school's failure to comply with child find may constitute a procedural violation of the IDEA.[86] Under the IDEA, where procedural violations are alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies led to a deprivation of education benefits to a student or the student’s right to a FAPE is significantly impeded. When a child requires special education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. [87] c)Discipline of Students with Disabilities and Manifestation Determination Review
81 D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]; and 34 CFR§ 300.111[c] [1]; see 8 NYCRR§ 200.2 [a] [1] and [7]
Section II of Regulation of the New York City School Chancellor, Student Discipline Procedures, governs the discipline of students with disabilities.[88] A student who has not been determined eligible for special education services at the time of the precipitating behavior may invoke the protections of the IDEA if school officials had knowledge that the student had a disability. [89]
The Regulations define “knowledge” as a) the parent expressed concern in writing, b) the student’s behavior or performance demonstrates the need for services, c) the parent submitted a written request for an evaluation, or d) the student’s teacher or other school personnel expressed concern and initiated a referral” (emphasis added).[90] However, such knowledge will not be imputed to the school if the CSE or the subcommittee determines that an evaluation is not necessary and notifies the parent or conducts an evaluation and makes a determination of ineligibility.[91] If a request for an evaluation is made during the suspension, the evaluation must also be conducted within 15 school days.[92] The school must also conduct a functional behavioral assessment and implement a behavioral intervention or review an existing one. [93]
The school district may suspend or remove a student with a disability from school, or effectuate a change in current educational placement, in accordance with the federal and violate a code of student conduct. [94]
A disciplinary change in placement occurs when a student is suspended or removed for either ten (10) or more consecutive days of school or a pattern of suspensions results in a cumulation of more than 10 days in a school year. [95]
The district must conduct a Manifestation Determination Review (MDR) meeting "within ten (10) school days of any decision to change the placement of a child with a disability.”[96] The MDR team must include a district representative knowledgeable about the student and the interpretation of information about the student’s behavior, the parents, and relevant members of the CSE team as determined by the parents and the district. [97]
The 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 the conduct in question was: (1) “caused by or had a direct and substantial relationship to the student's disability;” or (2) “the direct result of the school district's failure to implement the IEP.”[98] The team is not required to review everything in a student’s file, only those relevant to a decision. [99]
The parent must receive written notification prior to any manifestation team meeting "to ensure that the parent has an opportunity to attend.”[100] The notification must inform the parent of their right to have relevant members of the CSE attend. [101]
If, after review of all relevant information, 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 behavioral intervention plan (BIP); or if the student already has a BIP, review the BIP and modify it as necessary to address the behavior.[102] An FBA must be conducted when a student’s behavior impedes his or her learning or that of others.[103] Except under "special circumstances" as defined in the IDEA and regulations, the district must also return the student to the placement from which he or she was removed or suspended. [104]
If the manifestation 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.[105] If the MDR team determines that the student's behavior was not a manifestation of his or her disability, the student is subject to the same procedures as a non-disabled student. [106]
“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.” [107]
ANALYSIS
a) Child Find
i) The district’s failure to initiate a referral. Here, it has been established through admissible evidence that the school violated the student’s procedural and substantive rights (a) to be evaluated for services and (b) with respect to the MDR meeting. The district failed to independently make a referral to the CSE,[108] evaluate the student in all areas of suspected disability, convene an IEP meeting, and develop a substantively adequate IEP tailored to meet her individual and unique needs based on her social, emotional, and academic history.[109] This was a student excessively late, absent, not on track to graduate, and, most importantly, being bullied, tormented, and threatened with expressions of suicide.[110] Therefore, I hold that the district overlooked clear signs of a disability and was negligent in failing to order testing, and presented no rational justification for not evaluating the student.[111] The school failed to carry out its independent obligation to make a referral despite the absence of a written request by the parent,[112] thereby violating the Chancellor’s regulations that are required by the IDEA to be in place to identify, locate, and evaluate such children. [113]
The psychologist’s testimony that the student did not have a documented diagnosis is unpersuasive. The Commissioner’s Regulation 8 NYCRR §200.1 [zz] [4] defines an “Emotional Disturbance” as one of the thirteen disabilities under the IDEA. To meet this
114 8 NYCRR § 200 [zz] [4] (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems.
115 8 NYCRR §200.1 [zz] [10] “Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance. (emphasis added) ii) The MDR was procedurally and substantively deficient.
The MDR team did not include a district representative or other team members knowledgeable about the student and the interpretation of information about the student’s behavior.[116] The members in attendance were the school psychologist, who had no involvement with the student prior to an email in January 2023; a dean who was not involved with the student according to the dean’s log from October through December 2022 or even the incidents of 11/02/2022 and 11/15/2022; and the school social worker who also does not appear in appear in the documentary evidence.
As a result, the district failed to consider all relevant information in the student's behavior history and academic file to determine whether the conduct in question was caused by or had a direct and substantial relationship to the student's disability. [117] Further, the district failed to consider that the paranoid behavior was the direct result of the school’s failure to create an IEP, which is an egregious violation under these circumstances.[118] The school completely ignored the student’s mental health history exacerbated by the obscene and violent bullying directed towards her by another student. [119]
d) The Remedy Based on the numerous procedural and substantive violations set forth herein, I am ordering that the suspension be expunged from the student’s record. This is the only available remedy since the student has served the suspension.
The district’s argument that “child find” was not pled in the complaint is also without merit. A pro se complaint is "to be liberally construed" and “must be held to less stringent standards than formal pleadings drafted by lawyers…to do substantial justice.” [120] In this vein, a hearing officer has broad powers and discretion to manage the hearing process under the IDEA.[121] Since a due process complaint in an expedited proceeding is not subject to a sufficiency challenge[122] and the district never requested clarification at the conferences,[123] the parent was not afforded the opportunity to clarify her position prior to the hearing. The IDEA is set-up to afford pro se parents access to justice for their children. Therefore, penalizing them for not “artfully pleading”[124] their case would run afoul of the IDEA’s legislative intent.
Therefore, in my broad discretion, I am also ordering that within 15 days of the date of this order, the district conduct a psychoeducational evaluation. The district has not presented a legal basis that an evaluation cannot be conducted until the parent submits her own evaluation. If the parent is unable to obtain her evaluation report before the IEP meeting is convened, she always has the right to request the IEP team reconvene to consider the evaluation. This is a fair reading of the complaint as the parent has stated that the district has been dilatory in evaluating the student.
ORDERS
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Petitioner/Parent’s request to appeal the MDR is GRANTED, and it is further
ORDERED that the Respondent/District shall expunge the suspension from the student’s record within 14 calendar days of the date of this order, and it is further
ORDERED that if the psychoeducational evaluation has already been completed by the Respondent/District, the IEP meeting shall be convened within 14 calendar days of this order, and it is further
ORDERED that if the psychoeducational evaluation of the student has not been completed, the Respondent/District shall conduct the evaluation within 14 calendar days of the date of this order, and it is further
ORDERED that the district shall conduct an FBA within 14 calendar days of the date of this order, and it is further
ORDERED that the Respondent/District shall provide a copy of the psychoeducational evaluation to the parent within five (5) school days of completion of the evaluation, or if already conducted, within five (5) school days of the date of this order, and it is further
ORDERED that the Respondent/District shall convene the IEP meeting for the student within ten (10) calendar days of completion of the psychoeducational evaluation.
Dated: 04/28/2023 SO ORDERED
Teresa R. Nuccio, Esq.
Impartial Hearing Officer (Digitally Signed)
Teresa R. Nuccio, 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
APPENDIX A – REDACTION IDENTIFICATION PAGE
Student’s Name: [REDACTED]
Date of Birth: 8/19/2006
School District: New York City Department of Education
Parent[s] Name[s]: [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT DATE DESCRIPTION PAGES
EXHIBITS
1. Parent's Initial Referral 2/16/23 1 page DOE
2. NYC DOE Occurrence Report 2/27/23 1 page DOE
3. [REDACTED] Superintendent Suspension Records 2/28/23 13 pages DOE
4. MDR Worksheet 3/10/23 5 pages DOE
5. Electronic Consent Form 3/23/23 2 pages DOE
6. Consent for Initial Evaluation 3/29/23 2 pages DOE
7. Resolution Agreement 3/21/23 3 pages DOE
8. Level I Vocational Interview 3/29/23 3 pages DOE
9. – SESIS Events Log [3/1/2023 - 4/5/2023] 4/5/23 3/1/23 3 pages DOE
10. Affidavit of [REDACTED] 4/13/23 DOE
PARENTS NONE
EXHIBITS
IHO EXHIBITS
I. Due Process Complaint 3/14/23 2 pages
II. – Email Chain 4/17/23 3/23/23 5 pages
III. WebEx Invite with Supplemental Pre-Hearing Conference Order attached 4/17/23 8 pages
Footnotes
[1] IHO-I (Exhibits shall be referred to as follows: “DOE” for District’s or Department’s Exhibits followed by the exhibit number, followed by page and paragraph numbers as needed. “I-IHO” [Roman Numerals] shall refer to the IHO’s Exhibits, also followed by page and paragraph numbers as needed.) The parent did not submit exhibits.
[2] To the extent that the DPC may involve violations of § 504 of the Rehabilitation Act, these claims are subsumed within the IDEA claims.
[4] Id.
[5] The district only offered a Functional Behavior Assessment.
[7] IHO-II:4
[8] IHO-II:3
[11] IHO-III:1
[12] IHO-II:2
[13] IHO-II:2
[14] IHO-II:2
[15] IHO-II:1
[20] T40:18-25 advised that the attorney was on vacation until 04/18/2023 and elected to go
[21] T41-42. Although there is a discrepancy that the decision was due on 4/20/2023, the IHO and the district advised the parent that neither were unavailable on 04/19/2023 and 04/20/2023 to conduct the hearing. There was no guarantee the attorney would be available on the day he/she returned from vacation to conduct the hearing.
[28] DOE-4:2 (As of 03/10/2023, the student has earned only 24.32 credits of the 49.32 attempted credits.). See also the testimony of the school psychologist.)
[31] DOE-3:12 This fact is undisputed by the parties.
[32] IHO-I:1, par.1; DOE-3:1
[33] Id.
[34] DOE-4:3; See also DOE-10:3, par. 18
[36] T50:11-21
[37] IHO-1; and T50:11-21 in violation of C.R. A-832). The IHO requested that the dean appear and testify. Therefore, this statement in the record is unverified and not subject to examination by the parent or a clarifying inquiry by the IHO.
[40] DOE-4:2 (As of 03/10/2023, the student has earned only 24.32 credits of the 49.32 attempted credits.)
[41] DOE-3:13 (She was present 65 days, absent 33 days and late 9 days.)
[44] See Transcript.
[45] DOE-3:9 (The dean previously advised the offending student that the social media posts and texts constituted Taunting treesh, way? girl go kill yourself or sun., way? English please not ur f***g weird language tell evan to answer me pls, and evan baby you both should take turns slitting each other’s wrists…u a dirty treesh b***- and ur morals are on the floor pick them the f*** up dumba***. 46
[47] See Transcript.
[48] See Transcript.
[50] DOE-3:9-10 following this incident, she informed the school counselor that not only did she think that
[52] T82:16-19
[53] T80:8-11 fourteen (14) day suspension stemming from a February 27, 2023, incident.” 54 On cross-
[57] T56:20-24 performed a Google search, “How do I get a school to evaluate my daughter the fastest, the
[58] T82:18-25
[60] Id.
[63] DOE-3:12-13
[64] DOE-3:12
[66] Id.
[67] See the 03/23/2023 transcript of the Pre-Hearing Conference. Although the parent was not sworn under oath at the conference, she spoke extensively about her daughter’s right to defend herself.
[68] Id.
[69] Id.; and see psychologist’s testimony at T68:23-25, 69:1-13.
[71] DOE-4:2, §§3, 6[B] and 8
[73] DOE-10:3, par.18 caused her to forget that she had pepper spray and a knife while waiting on line for scanning. (emphasis added). 74 rebut the parent’s testimony or aid the IHO in her affirmative duty to complete the record.
[76] Education Law § 4404 [1] [c]
[77] 20 U.S.C. § 1415 (i)(2)(c). See also. Reid v. District of Columbia, 401 F.3d 516, 521 [D.C.C. 2005]
[78] Greenwich Collieries v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[79] Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing Handberry v. Thompson, 446 F.3d 335, 347-348 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [SDNY 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. 2010]; and 20 U.S.C. § 1412 [a] [3] [A]; 34 CFR § 300.111; 8 NYCRR § 200.2 [a] [1] and [7]
[80] Forest Grove, 557 U.S. 230 [2007] K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [SDNY 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a] [10] [A] [ii]; see also 8 NYCRR§ 200.2[a] [1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 fn.13 [NDNY 2004]; and 20 U.S.C. § 1412[a] [3]; 34 CFR§ 300.111[a] [1] [i] grade to grade." 81 Therefore, a parent need not request that the district evaluate their
[82] Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]
[83] 34 CFR§ 300.111[a] [1]; 8 NYCRR§ 200.2 [a] [1] and [7]
[84] J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 660 [SDNY 2011]; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]
[85] Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing, Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting, Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225
[86] D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); and D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 5th Cir. 2010
[87] Forest Grove School Dist. v. T.A., 557 U.S. 230
[88] Citywide Behavioral Expectations to Support Student Learning Grades 6-12 and Discipline Code, Effective September 2019, Discipline Code, A-443, p.8
[89] Id., § II.B., A-443, p.9
[90] Id., § II.B.1 [a] through [d], A-443, p.9; and 8 NYCRR §200.4 [a] [1] [ii]
[91] Id., § II.B.2 [a] through [c], A-443, p.10
[92] Id., § II.B.5, A-443, p.10
[93] Id., § II.C.4 and II.D, A-443, p.11-12 state procedural law and the Regulations of the Commissioner of Education when students
[94] See 20 U.S.C. § 1415 [k]; 34 CFR §§ 300.530-300.537; Education Law §3214 [3] [g] and § 4404 [1]; and 8 NYCRR Part 201.
[95] 8 NYCRR § 201.2 [e]; See 20 U.S.C. § 1415 [k] [1] [B]; and § 34 CFR 300.530 [b] [2] and [c]
[96] 20 U.S.C. § 1415 [k] [1] [E]; 34 CFR § 300.530 [e]; and 8 NYCRR § 201.4
[97] 20 U.S.C. § 1415 [k] [1] [E] [ii]; 34 CFR § 300.530 [e] [1], [2]; 8 NYCRR § 201.4 [b]
[98] 20 USC § 1415 [k] [1] [E]; 34 CFR §300.530 [e]; and 8 NYCRR § 201.4 [c]
[99] Fitzgerald v. Fairfax County Sch. Bd., 556 F. Supp. 2d 543, 559 [E.D. Va. 2008]
[100] 8 NYCRR § 201.4 [b] include the purpose of the meeting, the names of the individuals expected to attend, and [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]
[101] Id.
[102] 20 U.S.C. § 1415 [k] [1] [F]; 34 CFR § 300.530 [f] [1]; and 8 NYCRR § 201.3
[103] 8 NYCRR § 200.4 [b] [1] [iv]
[104] 20 U.S.C. § 1415 [1] [F]; Educ. Law § 3214 [3] [g] [3] [viii]; 34 CFR § 300.530 [f] [2]; and 8 NYCRR § 201.4 [d] [2] [ii]
[105] 20 U.S.C. § 1415 [k] [3] [E] [i]; 34 CFR § 300.530 [e] [1] [ii]; and 8 NYCRR § 201.4 [e]
[106] 20 U.S.C. § 1415 [k] [1] [C]; 34 CFR § 300.530 [c]; see Educ. Law § 3214 [3] [g] [vi]
[107] Application of a Student with a Disability, Appeal No.: 22-120, p.7, citing 20 U.S.C. § 1415 [k][3][A]; 34 CFR § 300.532
[108] Citywide Behavioral Expectations to Support Student Learning Grades 6-12 and Discipline Code, Effective September 2019, Discipline Code, A-443, p.8, § II.B.1 [a] through [d], A-443, p.9; and 8 NYCRR §200.4 [a] [1] [ii]
[109] Rowley, 458 U.S. 183; Winkelman v. Parma City Sch. Dist., 550 U.S. 525-526 and R.E., 694 F.3d 190; and 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]
[110] T.K. v. New York City Dep’t of Educ., 810 F.3d 869 [2nd Cir. 2016]
[111] Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing, Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting, Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225
[112] Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]
[113] 34 CFR§ 300.111[a] [1]; 8 NYCRR§ 200.2 [a] [1] and [7] threshold, a student must have a condition exhibiting one or more of five specifically defined characteristics over a long period of time and “to a marked degree that adversely affects a student’s performance.” 114 This category does not mandate a medical diagnosis as a condition precedent to making a referral to the CSE. Neither does the “Other Health Impairment” category. 115 Based on the student’s history, the deans, school counselor, and psychologist should have suspected the student had a disability and referred her for an evaluation, as her history documents one or more of these suspected categories of disability.
[116] 20 U.S.C. § 1415 [k] [1] [E] [ii]; 34 CFR § 300.530 [e] [1], [2]; 8 NYCRR § 201.4 [b]
[117] 20 USC § 1415 [k] [1] [E]; 34 CFR §300.530 [e]; and 8 NYCRR § 201.4 [c]
[118] Forest Grove School Dist. v. T.A., 557 U.S. 230.
[119] T.K. v. New York City Dep’t of Educ., 810 F.3d 869
[120] Erickson v. Pardus, 551 U.S. 89, 94 [2007]
[121] Forest Grove Sch. Dist. V. T.A., 557 US 230
[122] 8 NYCRR §200.5 [f] [3]
[123] Erickson v. Pardus, 577 U.S. 94
[124] Erickson v. Pardus, 551 U.S. 95 in Part 279 and model forms are available at http://www.sro.nysed.gov.