NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 599810 -
NYC: 248364
FINDINGS OF FACT AND
DECISION
Case Number: 248364
Student’s Name: REDACTED
School District: REDACTED
Impartial Hearing Officer: Patricia Le Goff
Date of Filing: May 17, 2023
Hearing Requested by: Parent
Date of Hearing: 06/15/2023
Record Close Date: 06/23/2023
Date of Decision: 06/23/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 15, 2023
REDACTED, Mobilization for Justice — Student
Witness: — Student
REDACTED — Parents
REDACTED Special Education Unit — DOE
BACKGROUND
On May 17, 2023, Parent,[1] through counsel, filed a Due Process Complaint (“DPC”). In the DPC, Parent alleges that the Department of Education (“DOE” or “District”) erred in its finding that a March 15, 2023 incident was not a manifestation of Student’s disability. As a remedy, Parent is seeking to overturn the Manifestation Determination Review (“MDR”) decision and to expunge “any and all reference to the alleged incident in all of [Student’s] school records” (Ex. A-6). 2
PROCEDURAL HISTORY
On May 17, 2023, Parent filed a DPC (Ex. A). A Settlement and a Pre-Hearing Conference (“PHC”) were held on June [2], 2023, in front of a different Impartial Hearing Officer (“IHO”).[3] I was appointed to the case on June 5, 2023, after the original IHO recused themselves. On June 8, 2023, the parties appeared for a status conference. A Due Process Hearing (“DPH”) was held on June 15, 2023. The compliance date in this matter is July 7, 2023. A list of exhibits admitted into evidence is attached hereto.
On June 15, 2023, both Parties appeared for a virtual DPH via WebEx. District did not introduce witness testimony and offered four exhibits, which were admitted into evidence without objection (Tr. at 7-9). DOE Representative waived their opening statement (Tr. at 13), cross-examined Parent’s witness (Tr. at 26-30) and gave a brief closing statement (Tr. at 31-33). Parent Representative offered fourteen exhibits into evidence without objection (Tr. 9-13), gave an opening statement (Tr. at 13-16), presented one witness (Tr. at 17-30), and gave a closing statement (Tr. at 33-35).
FINDINGS OF FACT
Student is a REDACTED-year-old 9th grader who has been classified by the CSE as having “Other Health Impairment” (Ex. D-1) and is diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”) (Exs. A-2; D-3; L-3). Student attends Public School. Student’s November 2022 IEP recommends Integrated Co-Teaching Services (“ICT”) and related counseling services, two sessions per week, thirty minutes per session (Ex. D-10).
Student was suspended for a March 15, 2023 incident (Ex. A-2; Ex. 1-1). The Occurrence Report explains that Student was arguing with another student in class. Classroom Teacher observed Student “pushing the desk away and as if [Student] was about to fight [the other student]. Student then punched [another student] in the face causing [other student’s] lip to bleed and [their] face to swell” (Ex.1-1). As Classroom Teacher tried to separate the two individuals, Classroom Teacher was punched in the face, causing a nosebleed and swollen lip (Ex.1-1).
Student and Classroom Teacher provided written statements about the March 15, 2023 incident (Ex. F) [4]. Classroom Teacher reported that “Student stood up out of [their] seat and pushed desk aside as if [they were] ready to fight. Then [other student] proceeded to get up as well. [Student] threw the first punch and then they were fighting. I tried to intervene and pull the students apart but one of the students punched me in the face” (Ex. F-2). Student wrote “I said no way your [sic] talking crazy from all the way over” and “got up in my face and I punched [student]” (Ex. F-1).
On March 20, 2023, Student was suspended from Public School because of the March 15th incident (Ex. 3-1) and on March 24, 2023, a suspension hearing was held (Id.). On March 29, 2023, a MDR was held and was attended by the Dean, School Psychologist, “Other Staff Member with knowledge of the Student” and Parent (Ex. 2-1). Parent attended the MDR meeting by telephone (Tr. at 19, 29). Parent was represented by a law student (Tr. at 23).[5] Parent testified that the school prevented Parent and their representative from speaking, offering any documents, or even presenting their position at the MDR (Tr. at 23). Parent further explained that during the MDR meeting “they were just speaking over us” and someone was “screaming” (Id.). Parent could not identify whether it was a male or female voice (Tr. at 29). Parent testified that they never received the completed MDR worksheet (Tr. at 20-21).
There is no evidence that the MDR team discussed any relevant documents. Parent testified that no one discussed Student’s IEPs[6] (Tr. at 21), Functional Behavioral Analysis (“FBA”), Behavior Intervention Plan (“BIP”), social history evaluation or any written teacher observations of Student (Tr. at 22-23). Furthermore, the MDR team did not review the documents related to a September 2021 incident (Ex. 2-2; Tr. at 22-23) involving Student. According to the DPC, the September 2021 incident was almost identical to the March 15, 2023 incident which is the subject of Student’s suspension (Ex. A-3). Parent testified that in September 2021, Student was suspended for getting into a fight with another student and ultimately hitting the principal who tried to separate the two combatants (Tr. at 19).
There is no evidence that the MDR team ever discussed whether the March 15th incident had a direct and substantial relationship to Student’s disability or whether Student’s IEP was fully implemented (Tr. at 24). DOE offered no evidence or explanation regarding how the MDR team concluded that the behavior was not a manifestation of Student’s disability.
LEGAL FRAMEWORK
The school district may suspend or remove a student with a disability from school, or make a change in current educational placement, in accordance with the procedures and safeguards set forth in both federal law, state law, and the Regulations of the Commissioner of Education, when a student violates a code of student conduct. See 20 U.S.C. §1415(k); 34 CFR §§300.530-300.537; Education Law §3214(3)(g), 4404(1); 8 NYCRR Part 201.
A disciplinary change in placement occurs when a student is suspended or removed for either more than 10 consecutive days of school or a pattern of suspensions resulting in a cumulation of more than 10 days in a school year. See 8 NYCRR 201.2(e); 20 U.S.C. § 1415(k)(1)(B); 34 CFR 300.530(b)(2), (c). A pattern may result because: 1) the series of suspensions totals more than 10 school days in a school year; 2) the student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of suspensions; or 3) because of such additional factors, such as the length of each suspensions, the total amount of time the student has been suspended, and the proximity of the suspensions to one another. See 34 C.F.R.§300.536(a).
The district must conduct a MDR meeting "within 10 school days of any decision to change the placement of a child with a disability.” 20 U.S.C. §1415(k)(1)(E); 34 CFR §300.530(e); 8 NYCRR §201.4. 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. See 20 USC §1415(k)(1)(E)(ii); 34 CFR §300.530(e)(1), (2); 8 NYCRR §201.4(b).
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." 20 USC §1415(k)(1)(E); 34 CFR §300.530(e); 8 NYCRR §201.4(c). The team is not required to review everything in a student’s file, only those relevant to a decision. See Fitzgerald v. Fairfax County Sch. Bd., 556 F. Supp. 2d 543, 559 (E.D. Va. 2008).
The parent must receive written notification prior to any manifestation team meeting "to ensure that the parent has an opportunity to attend." 8 NYCRR 201.4(b). The notification must include the purpose of the meeting and the names of the individuals expected to attend, and inform the parent of their right to have relevant members of the CSE attend. See id.
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. See 20 U.S.C. § 1415(k)(1)(F); 34 CFR 300.530(f)(1); 8 NYCRR 201.3. An FBA must be conducted when a student’s behavior impedes his or her learning or that of others. See 8 NYCRR §200.4(b)(1)(iv). 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. See 20 U.S.C. § 1415(1)(F); Educ. Law § 3214(3)(g)(3)(vii); 34 CFR 300.530(f)(2); 8 NYCRR 201.4(d)(2)(ii)).
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. See 20 U.S.C. § 1415(k)(3)(E)(i); 34 CFR 300.530(e)(1)(ii); 8 NYCRR 201.4(e).
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. See 20 U.S.C.§ 1415(k)(1)(C); 34 CFR 300.530(c); see Educ. Law § 3214(3)(g)(vi).
“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.” 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 (c); 8 NYCRR § 201.11 (a) (3) (4); see also Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 201-02 (2d Cir. 2007).
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. See Education Law § 4404 (1)(c). When reviewing a manifestation determination, the hearing officer is required to determine whether the district established by a preponderance of the evidence, that the MDR team correctly determined that student’s behavior was not a manifestation of the student’s disability. See 20 U.S.C. § 1415(k)(6)(B)(i); 34 C.F.R. § 300.525(b); 8 NYCRR 201.11(a)(3); see 20 U.S.C. § 1415 (i)(2)(c). See also Reid v. District of Columbia, 401 F.3d 516, 521 (D.C.C. 2005).
In this case, District Representative offered four exhibits, but presented no witnesses to explain what documents and information the MDR team considered, how it was constituted or why the March 15th incident was not deemed a manifestation of Student’s disability. I find that the District has not met its burden in this case and the MDR team erred in its determination.
ANALYSIS
Procedural Deficiencies
Parent alleges that the MDR was procedurally deficient. I agree.
I find that the MDR team failed to consider all relevant information necessary to make an informed decision. I find that the MDR team did not discuss the Student’s IEPs, FBA, BIP, psychiatric evaluation, or teacher observations. I find that Parent had no meaningful opportunity to participate in the process in that Parent was prevented from offering any information or evidence during the MDR meeting and Parent’s representative was similarly prevented from speaking (Tr. at 23-24). DOE representatives were speaking over Parent and their representative and “screaming” (Id.). Parent testified that the individual on the other end of the telephone was “yelling, just yelling” and that Parent and their representative never had an opportunity to share their position (Id.).
There is no indication that the MDR team had information about the September 2021 incident that also led to Student’s suspension (Ex. A-3). DOE Representative did not dispute that the September 2021 incident occurred, but rather argued that the September 2021 incident happened in a different school and is therefore not relevant (Tr. at 32). I am not persuaded by this argument. The incident is consistent with Student’s behavior on March 15, 2023. In September 2021, Student was suspended for a physical altercation with another student which resulted in Student punching the principal (Tr. at 19). I find that Student’s behavior in September 2021 was virtually identical to Student’s behavior on March 15th which is the subject of this proceeding.
DOE failed to explain why the MDR team did not consider any of the evidence or allow Parent to meaningfully participate in the process. I find that the totality of these procedural violations renders Student’s MDR deficient. See Application of the N.Y.C. Dep’t of Educ., Appeal No. 11-034 (a technical violation of the procedures is not sufficient to render the MDR team’s determination invalid; however, “scant evidence” regarding the District’s compliance with the procedures and its efforts to obtain parent’s participation “may not suffice to uphold the determination of the MDR”).
Relationship of Conduct to Student’s Disability
I find that the MDR team erred in its determination that Student’s behavior was not a manifestation of Student’s disability. The record supports a finding that the behavior that led to the March 15th incident was directly and substantially related to Student’s disability, as evidenced by Student’s 2015 BIP and IEPs from 2020, 2021 and 2022 (Exs. B, C, D and K). Student’s IEPs and BIP consistently note Student’s disruptive and impulsive behavior and anger management issues. Additionally, DOE failed to meet its burden and presented no witnesses to support the MDR team’s position that Student’s disability was not directly and substantially related to Student’s disability. In fact, although the issue was an integral part of the MDR worksheet and required to be discussed with the MDR team, there is no evidence that it was (Ex. N-5; Tr. at 24).
The evidence shows that Student did struggle with impulsive and aggressive behavior which is the type of behavior Student exhibited on March 15th. According to Student’s BIP, Student will “pout, stomp, and depend[ing] on what it is will punch as well” (Ex. K-1).
Student’s November 2020 IEP includes a counseling goal that “[Student] will learn different techniques to calm down and control [Student’s] anger” (Ex. B-10). Student’s November 2020 IEP recommended one session of counseling, once a week for thirty minutes (Ex. B-11). The following year, Student’s behavior escalated.
In Student’s November 2021 IEP, Student’s teachers note that Student “can be disruptive at times, shouting out at students and engaging in arguments with peers” (Ex. C-3). It is noted that Student has difficulty regulating emotions and Student was recommended to see the “at-risk” school counselor to help Student address triggers and work on ways to control emotions (Ex. C-4). The CSE recommended that counseling continue “to address Student’s social/emotional growth in the areas[sic] of anger management” (Ex. C-4). The IEP clearly noted that Student struggles “both academically and behaviorally” (Ex. C-4). One of Student’s annual goals in counseling specifically provides that Student “will refrain from physical aggression (i.e. kicking, hitting, pushing, tripping) across all environments in school” (Ex. C-7) and Student “will learn appropriate ways to deal with [ ] emotions by learning de-escalation techniques during [ ] sessions” (Ex. C-7). “[Student] will learn different techniques to help [Student] calm down and control [ ] anger” (Ex. C-8). The November 2021 IEP again only recommended one session of counseling, thirty minutes a week (Ex.C-12).
Student’s aggressive and impulsive behavior did not ameliorate, and both the DOE and Parent were aware of that fact. Parent testified that at the November 2022 IEP meeting they requested Student receive counseling three times a week (Tr. at 27) and although that recommendation was not accepted, Student’s counseling sessions were increased from one to two sessions a week, for thirty minutes each session (Tr. at 27; Ex. D-10). Student’s counseling sessions were not increased to three sessions because the additional sessions would interfere with Student’s academic programs (Tr. at 27).
Ultimately, I find that the DOE did not demonstrate by a preponderance of the evidence that the MDR team considered all relevant information regarding Student’s known social and emotional needs to determine if and how Student’s behavior on March 15th was related to Student’s disability. Despite this Student only attending Public School for several months, having difficulty adjusting to the new school and Student’s prior incident of fighting, aggressive behavior, and outbursts, the MDR team did not consider all the relevant information that was available to them and erred in their determination.
IEP Implementation
I further find that the March 15th incident was a direct result of the District’s failure to implement the entirety of Student’s November 2022 IEP.
There is no evidence that the MDR team discussed the implementation of services or programs in Student’s IEP (Tr. at 24). This is also a required part of the MDR worksheet (Ex. 2-3)[7] In closing, DOE Representative argued that DOE did implement Student’s IEP because Student’s IEP recommended an ICT class, which was Student’s current placement (Tr. at 31-32) and they only missed a few counseling sessions (Tr. at 31-32). Contrary to DOE’s position, the counseling sessions are an integral part of Student’s special education placement and program given the extent of Student’s documented social and emotional needs. I find that the missed counseling sessions, rather than the recommended ICT class, are directly linked to the behavior at issue and the March 15, 2023 incident was a direct result of DOE’s failure to consistently implement the counseling sessions.
Student’s IEP requires them to receive counseling sessions, twice a week, for thirty minutes a session (Tr. at 24-25, 27; Ex. D-10). I credit Parent’s testimony that at the November 2022 IEP meeting they requested counseling three times per week, rather than twice per week and were told that Student would not be able to get the educational part of the IEP with additional counseling (Tr. at 27). According to the evidence, there were numerous weeks where Student did not receive the recommended counseling services (Ex. I). Beginning November 23, 2022, the evidence shows that Student never received more than four sessions in any given month. In fact, for the months of December, 2022, February, 2023 and March 2023, Student only received three sessions of counseling those months and for the month of April, 2023, the evidence shows that Student only received two sessions of counseling. There is no evidence Student received any counseling in May or June, 2023 (Ex. I). Parent testified that those counseling services where crucial to assist Student with their behavioral issues, acting out and adjusting to the new school environment (Tr. at 25). Counseling sessions help Student troubleshoot issues while keeping them calm and stable (Id.).
It was also recommended in the November 2022 IEP that Student participate in extracurricular activities (Ex. D-8; Tr. at 25). One of Student’s counseling goals is that Student will engage in extracurricular activities “to help cope with [] emotions” (Ex. D-8; Tr. at 25). Parent testified that Student went to that Public School because of Student’s interest in track (Tr. at 26), but because of Student’s grades they have been unable to engage in that extracurricular activity and they have not received assistance finding another activity (Id.).
Contrary to the MDR, I find a direct correlation between the failure to fully implement Student’s IEP and the March 15, 2023 incident.
Expungement
Despite Parent’s request in the DPC to “expunge any and all reference to the alleged incident,” I am solely ordering the expungement of Student’s suspension from Student’s records. To the extent that DOE argued that an IHO lacks the authority to expunge a suspension from a student’s educational record (Tr. at 32-33), I disagree. See e.g., Application of a Child with a Disability, Appeal No.: 02-064.
FBA and BIP
Parent provided an FBA and BIP that are nearly eight years old. Based on Student’s demonstrated social and emotional needs, I find that a new FBA and BIP are warranted.
I have reviewed Parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDERS:
IT IS HEREBY:
ORDERED that the District reverse the decision of the MDR team; and ORDERED that the District shall expunge the suspension from Student’s records within fifteen (15) calendar days of the date of this Order; and ORDERED that the District complete a Functional Behavior Assessment (“FBA”) of Student and develop an appropriate Behavior Intervention Plan (“BIP”) within forty-five (45) calendar days of the date of this Order; and ORDERED that the CSE reconvene within thirty (30) calendar days of receipt of the FBA and BIP and incorporate the results of the documents in developing an appropriate special education program for Student.
DATED: JUNE 23, 2023 SO
ORDERED
____________________
Patricia Le Goff
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A- REDACTION
IDENTIFICATION PAGE
| Redacted Information | Term Used In FOFD |
| REDACTED | Student |
| REDACTED | Parent (Mother) |
| REDACTED | District Representative |
| REDACTED | Parent Representative |
| REDACTED | Public School |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
| Exhibit | Title | Date | Pages |
| 1 | Occurrence Report | 3/16/2023 | 2 |
| 2 | MDR Worksheet | 3/29/2023 | 4 |
| 3 | Notice of Superintendent Suspension | 5/25/2023 | 3 |
| 4 | Suspension Plan | 5/25/2023 | 2 |
| 5 | Due Process Complaint #226056 | 4/27/2022 | 3 |
PARENT EXHIBITS
| Exhibit | Title | Date | Pages |
| A | Due Process Complaint | May 17, 2023 | 6 |
| B | Individualized Education Program (IEP) | Nov. 4, 2020 | 18 |
| C | IEP | Nov. 4, 2021 | 19 |
| D | IEP | Nov. 2, 2022 | 18 |
| E | Charges Leading to Suspension | March 17, 2023 | 1 |
| F | Suspension Witness Statements (Student and Teacher) | March 14, 2023 | 2 |
| G | Report Card | March 23, 2023 | 1 |
| H | DOE Permanent Record (High School Transcript) | March 23, 2023 | 1 |
| I | DOE Counseling Service Logs | 2022-2023 | 2 |
| J | DOE Functional Behavioral Assessment (FBA) | Sept. 7, 2015 | 3 |
| K | DOE Behavioral Intervention Plan (BIP) | Sep. 8, 2015 | 3 |
| L | Psychiatric Evaluation | April 15, 2015 | 18 |
| M | DOE Psychoeducational Evaluation | July 7, 2015 | 5 |
| N | Sample DOE-Required MDR Worksheet | Undated | 8 |
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] References to the Exhibits from the Due Process Hearing are denoted (“Ex.”).
[3] Settlement conferences are conducted by an OATH Settlement Officer or an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement conferences are not recorded.
[4] I find that the witness statements should be dated March 15, 2023, not March 14, 2023. I find that this was just a ministerial error in the dates as there is no dispute that the incident occurred on March 15, 2023.
[5] The MDR worksheet contains a section entitled “Manifestation Determination Review Team.” That section purports to list everyone who was present at the meeting and whether they participated by phone (Ex. 2-1). Upon my review, I find that the information is not accurate as Parent is listed but is not identified as appearing by phone and the law student who represented Parent is not on the list (Ex. 2-1).
[6] According to the MDR worksheet, the MDR team reviewed one document, Student’s November 2022 IEP (Ex. 2- 2). Considering Parent’s testimony, the other inaccuracies with the MDR worksheet as noted in a prior footnote and DOE’s failure to call any witness to explain the document, I find that the MDR team did not discuss Student’s November 2022 IEP in any meaningful way.
[7] “The MDR Team must discuss whether the student was receiving the program and all of the services outlined on the IEP and if not, whether the incident was a direct result of the DOE’s failure to implement that program and services” (Ex. 2-3).