Philadelphia City School District | Case 6097-05-06 | 2005-12-19

In re: Student Page 1 of 14 This is a redacted version of the original hearing officer decision. Select details may have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. Decision Due Process Hearing for A.H. Date of Birth: xx/xx/xx File Number: 6097/05-06KE Date of Hearing: December 9, 2005 OPEN HEARING Parties: Representative: Parent David Sambolin, Esq. 3214 Hamilton Street Philadelphia, PA 19104-2517 School District of Philadelphia Mimi Rose, Esq Office of General Council Office of General Counsel 440 N. Broad Street, 3 rd Floor 440 N. Broad Street, 3 rd Floor Philadelphia, PA 19130 Philadelphia, PA 19130 Date Transcript Received: December 12, 2005 Date of Decision: December 19, 2005 Hearing Officer: David F. Bateman, PhD

In re: Student Page 2 of 14 I. BACKGROUND Student is a [teenaged] student eligib le for special education and related services identified as need ing emotional support. He currently attends [a day school, hereafter Day School]. Student attend ed a residential trea tment facility as a result of a plea agreement for the 2004-2005 school year, but ran away from the facility. He was sent to the residential treatment facility after assaulting a teacher at [Day School]. [Day School] is a self -contained day school for students labeled as needing emotional support affiliated w ith the School District of Philadelphia [School Distrct]. In November 2005, Student was engaged in a serious incident at school necessitating his being admitted into the emergency room. The District commenced with a manifestation determin ation meeting finding that his behavior was not a manifestation of his disability. The Parent disagreed with the manifest ation determination report as completed by the District, and requested a due pro cess hearing. The hearing was held to determine if the behavior was a manifestati on of his disability, and to determine if he was a danger to himself or others. This hearing was held shortly after the U.S. Supreme Court issued their decision in the Schaffer v. Weast matter shifting the burden to the party filing for the hearing. Additionally, this heari ng was held in the middle of a major snowstorm, and this hearing officer greatly appreciates the efforts made by all to attend.

In re: Student Page 3 of 14 II. FINDINGS OF FACT1 A. Background 1. Student was born on xx/xx/xx. He is currently [teenaged]. (P-4). 2. Student is a resident of the School District eligible for special education and related services as a student with emotional disturbance (P-3). 3. Student attends [Day School]. The sc hool he attends is a special education high school, designed for st udents who are labeled as requiring emotional support (NT 105, 118) affiliated with the School District. 4. An evaluation report was completed on December 14, 2004 (P-3). This evaluation report found Student eligible for special education as a student with an emotional disturbance. This was a reevaluation of Student. 5. A student evaluation record was complete d at the request of the parent. This was completed December 14, 2004 (P-2, S-1). This report indicated Student is of average intelligence but that th e primary factor preventing educational progress continues to be serious emotional disturbance. 6. An IEP was developed for Student on January 4, 2005 (P-4). The IEP provides for full-time emotional support service at [Day School]. 7. He previously left [Day School] (NT 111) due to a court order as a result of an [redacted] on a teacher (NT 143). Student was ordered to attend a residential facility. He ran away from the residen tial facility (NT 143). He started to attend [Day School] in September 2005 at the request of the Parent (NT 143). 1 References to notes of testimony will be designated “NT” followed by the relevant page number. References to District evidentiary exhibits will be designated “S” followed by the relevant exhibit number.

In re: Student Page 4 of 14 8. A biophysical evaluation was complete d on September 8, 2005 (P-1). Mr. E completed the evaluation. The evaluation suggests a diagnosis of conduct disorder (P-1, p. 6). The report was received on November 30, 2005 (NT 99). The report also includes a history of [redacted] behavior s towards teachers and other students. The report also included a descrip tion of discharge criteria. 9. Student was suspended for two days on September 12, 2005 (NT 62). He was caught smoking on the school grounds. 10. There were numerous incidents invo lving Student and the school personnel over the past three months (P-6). Incidents includi ng smoking on school grounds, talking back to staff, harassing other students, reckless endangerment and threats, disruption of school, and offensive language. 11. On November 10, 2005, Student engage d in numerous acting out behaviors that culminated with [redacted] (NT 46-48). 12. Student was suspended on November 10, 2005 for five days (P-6, p. 45, 46). These suspensions arose from the serious incidents (NT 138). 13. A manifestation report was issued on November 22, 2005 (P-9, S-2). The school determined the actions and behavi ors were not a mani festation of the disability. Counsel at the manifestation meeting represented the Parent. 14. After the manifestation determinatio n meeting, the school issued a NOREP on November 22, 2005 for a full-time emoti onal support to occur at a location subject to the code of conduct (P-10, S-3). The Parent disagreed with the NOREP stating the disability was a manifestation of his disability.

In re: Student Page 5 of 14 15. Student was suspended on December 1, 2005 for five days as a result of continued problems in school (NT 56; S-4). Student was not following verbal prompts, [redacted], refusing to complete work, using profanity, and using the phone. Additionally, the teacher reported she felt threatened by his behavior (NT 174). III. ISSUES PRESENTED Was the manifestation determination held by the District appropriate? Is Student a danger to himself and others? IV. DISCUSSION AND CONCLUSION OF THE LAW A Due Process Hearing was requested because Student’s Parent disagrees with the manifestation determination mee ting made by the Distri ct. The District maintains that it has at all times satisfied the substantive and procedural requirements of the IDEA and Pennsylvania special education law with regard to the provision of special education and relate d services to Student. Therefore, it continues, there are no legal grounds to just ify the relief sought by the Parent in this proceeding. Student’s Educational Placement Before there is a discussion regarding the manifestation determination process, a review of the necessary components of the law is appropriate. It will start

In re: Student Page 6 of 14 with a discussion of the rationale for a manifestation determination, and the steps that are a part of the process. Appropriateness of the IEP The educational standard to which the Dist rict is held is clearly established by statutes and the courts. The IDEA does not require states to develop IEPs that “maximize the potential of handicapped ch ildren,” but requires the provision of “some” educational benefit to satisfy the Free Appropriate Public Education (FAPE) entitlement in IDEA. See Board of Education v. Rowley , 458 U.S. 176, 189 (1982) . The IDEA according to the United States Su preme Court in that case, further requires that the public school program, in order to be appropriate for the eligible student, provide access to specialized instruction a nd related services which are “reasonably calculated” to provide the student with some educational benefit. Id. at 207-208. In the Third Circuit, this has been adopted through holdings that the student must receive more than “trivial” or “de minimus” benefit, through an IEP that provides a “basic floor of opportunity. See Polk v. Central Sus quehanna School District , 853 F.2d 171 (3 rd Cir., 1998), and Carlisle Area School District v. Scoot, 62 F.3d 520 (3rd Cir., 1995). At issue in the instant matter is disc ipline, with respect to which federal law enables administration of sch ool-wide discipline plans including immediate options or crisis situations involving drugs, weapons, or danger of physical harm. The law is constr ucted to assure proper administration and maintenance of a safe school environment.

In re: Student Page 7 of 14 When contemplating a removal action invol ving such disciplinary issues, it is the responsibility of the Di strict to notify the parents, advising them of the schools intentions and their rights. This allows the parents, the IEP team, and all other involved parties to determine if a relationshi p exists between the child's behavior and his or her disability, as identified th rough the IEP process, at a manifestation determination meeting. That meeting must be initiated at the time of the action to remove, but never more than 10 days thereafter. Manifestation determinati on review is a mechanism requiring all parties to review events of school rule infractions or misconduct (cumulative ten-day rule), a weapons violation, or a drug/controlled substance violation for the purpose of determining whether the infraction is a result of the student's disa bility. The findings of this determination may be either that: (1) The behavior subject to the disciplinary action is a result of the student’s disability or, (2) The behavior subject to the disciplinary action is not a manifestation of the student’s disability. When conducting the determination the te am must review and consider all information available including: (1) All evaluation and diagnostics re sults (including what the parent provides now), (2) All observations of the child, and (3) All components of the IEP as well as the educational placement.

In re: Student Page 8 of 14 After the review of all information available, the team determines that: (1) The IEP was appropriate and implemented correctly according to all components stipulated, (2) The student's disability did not impair his ability to understand the impact and consequences of the behavior subject to the action, and (3) The student's disability did not im pair his ability to control his own actions at the time. If after the review, the manifestation determination team concludes that the IEP was deficient or not implemented according to prescription then actions to remedy the situation must occur. However, if the team finds that the school did comply with an appropriate IEP, then it may proceed to assess whether the behavior subject to disciplinary action was a manifestat ion of the student's disability. If the team concludes that it was not, the student would be subject to the conditions of discipline set forth in the schools’ disciplinary code. In that event, the District must then forward the student's disciplinary records to the person(s) who will administrate the school discipline. Parents of the student with the disability may always request an expedited due process hearing to challenge the results, findings, or rulings of that manifestation determination team. The "s tay put” rule for placement, before the interim alternative ed ucational placement, is in effect throughout any such due process hearing period unless the student is a danger to self or others. See 20 U.S.C. 1415(k)(4) – (7); C.F.R. 300.520 – 300.523.

In re: Student Page 9 of 14 §300.532 Appeal. (a) General. The parent of a child w ith a disability who disagrees with any decision regarding placement under §§300.530 and 300.531, or the manifestation determination under §300.530(e), or an LEA th at believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may request a hearing. (b) Authority of hearing officer. (1) A hearing offi cer under §300.511 hears, and makes a determination regarding, an app eal requested under paragraph (a) of this section. (2) In making the determination under pa ragraph (b)(1) of this section, the hearing officer may-- (i) Return the child with a disability to the placement from which the child was removed if the hearing officer determin es that the removal was a violation of §300.530 or that the child’s behavior was a manifestation of the child’s disability; or (ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that mainta ining the current placement of the child is substantially likely to result in injury to the child or to others. (3) The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes the child would be dangerous if returned to the original placement.

In re: Student Page 10 of 14 There was no real dispute on this record as to the appropriateness of the IEP, nor regarding the fact that the manifesta tion determination indicated he understood his behavior (P-9, S-2). Any challenge to the IEP would fail as it is, therefore, presumptively appropriate procedurally a nd substantively, while on the same basis specialized instruction with related se rvices pursuant to it produced progress commensurate with Third Circuit standard s. The team, at the manifestation determination meeting, indicated that it was recommending Student be disciplined as a student without a disability. The issue in front of this Hearing Officer was the appropriateness of the manifestation determ ination report(s), as generated by the District, with respect to wh ether or not the behavior in question was a manifestation of the student’s disability. The manifestation determination reports as generated by the District are well supported by the evidence presented for not only the meeting, but also for this Hearing. It is clear that Student ha s had problems in the past, hence the identification as a student in need of em otional support services (FF:4). However, the record clearly shows that he understan ds the behaviors exp ected by a student in the school. There was an indication of l ong standing similar behaviors manifested by Student, and there was indication from his teachers that the IEP was being implemented (NT 127-128). Absent any documentation that the IEP was implemented, the IEP was implemented appropriately. This is his third school year at [Day School]. He started about January 2004, but left the program shortly thereafter because [of aggressive behavior] (NT 143). As a part of the plea agreement in that case at tended a residential treatment facility, but

In re: Student Page 11 of 14 ran away (NT 143). His mother then sought to have him enrolled back in the [Day School] in September 2005 (NT 143). The [D ay School] accepted him and continued to implement the previous IEP. [Day School] is a self-cont ained school for students identified as needing emotional support. As the director descri bed Student, “Student would not be in the program if he was not aggressive.” (NT 105, 118). Student started back at [Day School] September 2005 at Parent request (NT 143). It is clear there were problems dur ing September/October with Student being involved in numerous infrac tions (FF:10). There was no new behavior plan because the Parent requested moving Student to a more restrictive placement, and the school had initiated the process, in itiated a NOREP (NT 112). Th e Parent requested a more restrictive placement in mid-October. The waiver and NOREP were sent October 15, and when it was not returned, a meeting was scheduled for November 17 (NT 11- 113). Counsel for the Parent sought to attend the meeting, and the meeting was rescheduled (NT 114). The specific incident that resulted in the District conducting a manifestation determination report involves an incident where Student became uncontrollable. [Redacted.] It is clear he gave thought to his actions, having de-escalated and [redacted]. The manifestation determination meeti ng was held and the District found his behavior was not a manifestat ion of his disability. Th e Parents disagreed to the determination made by the District, but also stated she did not think the [Day School] was an appropriate placement for him (NT 234-235).

In re: Student Page 12 of 14 The school had previously suspended him for a total of 12 days (NT 56, 62, 65, 138, 140). After the manifestation determination meeting, he was suspended for five days (NT 138). The school issued a NOREP for a new placement after the manifestation determination meeting, resulting in the present due process hearing (NT 137). After the manifestation determinati on meeting, Student continued to have behavioral outbursts. His teacher desc ribed an incident on November 30, 2005 where she felt threatened [redacted]. The director of the school described hi m as physically [redac ted] toward staff (NT 143, S-4). She also added that he is dangerous because he does not respond to verbal prompts (NT 89) and easily escalates very quickly (NT 145). The school staff stated they are scared due to behaviors, his history of following through with actions, and then the threats he has made to others (NT 48, 103, 194) It is clear Student’s current placement is not working. The representatives from the school and his Parent both state he need s to be in a different environment (NT 235-236). The District seeks to have him treated with the student code of conduct and placed in a different environment. The Parent requests an unnamed approved private school. Given the frequency of th e problems manifested by Student, the long history of the problems, [and recent behaviors] , it is clear a different environment is warranted. It is also clear he is a danger to himself and others. There was little evidence submitted indicating Student’s behavior plan was not being implemented. It needs a new behavior plan- one appropriate for the new school he will be attending. Specifically, St udent has a problem when he is held.

In re: Student Page 13 of 14 This came through very clear as a part of the testimony from the school officials and from Student (NT 254). The school has as its policy de-escalation polices and procedures that every one is trained to use (NT 77). The student and the Parent should note that if these procedures do not address the problem and Student is potentially dangerous to himsel f and others he may need to be restrained for his, and the other students, good (NT 274).

In re: Student Page 14 of 14 V. ORDER In accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED that the manifestation determination report developed by the District for Student is appropriate. Therefore, he needs to be disciplined according to the student code of conduct. Additionally, it is clear Student is a danger to himself and others and he needs to be educated in a more restrictive setting. ________________ _____________________ Date Hearing Officer