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Decision No. 12,992

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Beacon City School District and Dutchess County Board of Cooperative Educational Services.

Decision No. 12,992

(August 26, 1993)

Mid-Hudson Legal Services, Inc., attorneys for petitioner, RosaLee Charpentier, Esq., of

counsel

Shaw & Silveira, attorneys for respondent Board of Education of the Beacon City School

District, Garrett L. Silveira, Esq., of counsel

Anderson, Banks, Curran & Donoghue, attorneys for respondent Dutchess County Board

of Cooperative Educational Services, Daniel Petigrow, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals her son's suspension from the Dutchess County Board of Cooperative Educational Services ("BOCES") Educational Training Academy ("BETA") on December 21, 1992 and challenges the appropriateness of his subsequent school program in the Beacon City School District ("the district"). Petitioner requests an interim order directing respondent BOCES to readmit her son to BETA and both respondents to provide him an immediate opportunity to make up the school work he missed. The appeal must be sustained in part.

Petitioner's son is 18 years old and was classified learning disabled by the district's Committee on Special Education ("CSE") in March 1984. He remained classified for six years and was placed in self-contained classrooms during elementary school and into junior high school. In 1990, petitioner objected to her son's placement and requested that he return to a regular classroom. In response, the CSE reluctantly declassified him on September 19, 1990 and returned him to a regular classroom with counselling and supportive reading services. After experiencing major difficulties adjusting to his new program, as evidenced by emotional outbursts, he was hospitalized in a psychiatric facility during February and March of 1991. Following his discharge, the student was placed at the BOCES BETA alternative high school, where he attended until his suspension in December 1992.

On December 21, 1992, the student was suspended by BOCES for allegedly hitting another student. Petitioner was informed by telephone and by copy of a letter from the BOCES coordinator of alternative education to respondent district's director of special education stating that petitioner's son had been suspended from BETA "for five (5) days pending a placement by Beacon School District which will better serve (him)". According to the letter, the student was required to schedule an "exit interview" and to leave BETA. BOCES based its decision to expel him on its student handbook, which defines fighting as a major offense requiring "immediate suspension which will lead to separation from the program." Although described as a five day suspension, the student was not permitted to return to BETA. Respondent BOCES' only direct contact with petitioner was at a meeting on May 5, 1993, when the BETA coordinator informed her that her son's suspension would be discontinued as of September 1993.

In a letter dated January 13, 1993 to respondent district's superintendent, petitioner inquired about the educational program her son would receive during his suspension, requesting that the district address his "attention deficit disorder, ... dyslexia and ... reading problem." In the letter, petitioner specifically requested that the same teaching method used at BETA be offered rather than those used in his past special education program.

Respondent district's superintendent replied by letter dated January 15, 1993, informing petitioner that her son was "entitled to attend ... Beacon High School" where he could be enrolled "in the classes most appropriate to his past educational attainment and continuing interests" and indicating that any "specific instructional strategies and material requests would have to be addressed to (his) teacher." Petitioner was further advised that "as a non-classified student," her son was not entitled to funding for any "unique material procurement needs ..." Petitioner's son subsequently enrolled at Beacon High School.

By letter dated April 8, 1993 to the district's special education director, petitioner requested

assistance in placing ... [her] son ... in an educational program appropriate for his learning disability (dyslexia & attention deficit disorder).

The director responded by letter stating that he was "unsure" what petitioner was requesting because her son had been "declassified as a handicapped student." He concluded his letter by stating:

As you are aware, this is a busy time of the year for my office, as we are holding staffings on all handicapped students who are residents of this District. I am not in my office on a daily basis. However, please feel free to contact my office to set up a time to discuss your request. Any academic records are available to you through Beacon High School.

Despite her letter, petitioner's son was not referred to the CSE nor was petitioner given any notice of his rights under '504 of the Rehabilitation Act.

Petitioner's next letter to the district's special education director on April 19, 1993, requested:

a meeting as soon as possible with the CSE. At this CSE meeting I would like to have my son ... reclassified as learning disabled due to his being dyslexic and having an attention deficit disorder ... [and] to review what programs ... the Beacon City School District has available for children with this type of learning disability and to place him in the appropriate program for the remainder of this school year and to discuss the 1993-94 school program.

The next day, petitioner sent another letter stating that

I was not aware that I needed to use specific words to have my son reclassified as learning disabled and to have him placed in a program appropriate for being dyslexic and having an attention deficit disorder. To clarify my letter of April 8, 1993: ... I am REFERRING MY SON ... TO THE COMMITTEE OF SPECIAL EDUCATION (CSE). If these are the wrong words, please let me know.

On April 29, 1993, petitioner gave her written consent for the CSE to evaluate her son. Petitioner also wrote to respondent district's superintendent on May 10, 1993, to complain that her son had not received full-time instruction while enrolled in the high school, and to request an independent evaluation. Petitioner also requested a hearing to return her son to BETA and sought extra help to enable him to make up the work he had missed since his suspension in December 1992. On May 18, 1993, the CSE acknowledged petitioner's April 27 referral to the CSE in a letter to her counsel. On June 1, 1993, petitioner commenced this appeal and joined BOCES as a party on June 23, 1993, as directed by my counsel's office.

On June 22, 1993, the CSE met and recommended interalia, that petitioner's son be reclassified as "learning disabled" and returned to the BETA program for the 1993-94 school year. Respondent board approved the recommendation on July 19, 1993.

As a threshold matter, respondent district contends that the appeal is untimely to the extent that it relates to acts or decisions which occurred before May 1993. Respondent is correct that an appeal must be commenced within 30 days after the decision or act complained of (8 NYCRR '275.16). Nonetheless, I find petitioner's appeal timely to the extent it challenges continuing wrongs including the alleged failure of the CSE to act on her referrals and BOCES' suspension of her son without due process (Appeal of Aarseth, 32 Ed Dept Rep 506; Application of a Child with a Handicapping Condition, 30 id. 293; Appeal of Town of Smithtown, 28 id. 337; Matter of Baxter and Pickett, 21 id. 610.

Petitioner contends that respondents violated '504 of the Rehabilitation Act of 1973 (29 USC '794, "'504"). As recipients of federal funds, both respondents are subject to '504 regulations that require an appropriate education for all qualified students and an evaluation prior to a suspension beyond ten days (34 CFR ''104.31-104.38; EHLR 307:05 [OCR 1988]). Respondent district admits that it made no '504 referral when it declassified petitioner's son in 1990 despite every indication that the student continued to exhibit an educational disability. In addition, the record is devoid of evidence that either BOCES or the district notified petitioner of her son's rights under '504. Nonetheless, petitioner's claims under '504 should be presented at an impartial hearing in accordance with the procedure required by 29 USC '794 and 34 CFR Part 104 (Appeal of a Student with a Disability, ___ Ed Dept Rep ___, Decision No. 12969, dated August 2, 1993).

Petitioner also contends that respondent BOCES and/or district violated Education Law '3214 by expelling her son from the BETA program without a hearing.

Education Law '3214(3)(c) provides that:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.

Education Law '3214 incorporates the due process standards constitutionally required in cases involving student suspensions, including the right to written notice of the charges and the right to a hearing (see, Goss, et al. v Lopez, et al., 419 US 565, 95 S. Ct. 729, 42 L. Ed 2d 725 [1975]).

Since petitioner's son was suspended from BOCES on December 21, 1993 and did not even resume his education in his home district until sometime after January 15, 1993, he was entitled to a hearing under '3214. The record indicates, however, that petitioner never received proper notice of her son's suspension and her son was never afforded a hearing.

Education Law '3214 authorizes the board of education, superintendent of schools and BOCES district superintendent to suspend students and permits delegation to the principal of the district or the principal of the school where the student attends for suspensions not exceeding five days ('3214[3][a][b]). In this case, petitioner's son was suspended unilaterally by BETA's program coordinator who is entirely without authority to suspend a student. In addition, the program coordinator's letter of December 31, 1992 is not only internally inconsistent but wholly inadequate as a notice to the parent. The letter to respondent district's special education coordinator confirms both the student's suspension of five days and its determination that the student would, in essence, be expelled from the program without mention of due process.

Respondent BOCES contends that the district, not BOCES, should have provided due process under '3214. While respondents could have agreed to have the district, and not the BOCES, conduct the suspension hearing, there is no evidence of such an arrangement here. In the absence of an agreement, BOCES remained fully responsible for the notice and hearing mandated by '3214. Therefore, I must find respondent BOCES' failure to provide the parent with notice and to hold a hearing, despite its expulsion of the student, in violation of Education Law '3214.

In addition to the denial of due process, I also find the BOCES policy that requires the automatic expulsion of any student for fighting without regard to the individual circumstances giving rise to the offense arbitrary and in violation of Commissioner's regulations at 8 NYCRR 100.2(l)(1)(vi) (Appeal of Nuttall, 30 Ed Dept Rep 351; Appeal of Troy R., 29 id 424). Given the gross violations of law that occurred, all references to this student's suspension must be expunged from his record. In addition, respondent BOCES is directed to comply in the future with Education Law '3214.

Petitioner also contends that respondent district violated the Individuals with Disabilities Education Act ("IDEA") (20 USC '1400 et. seq.) and Article 89 of the Education Law by failing to act on her son's referral for special education services and by neglecting to provide him with a free appropriate public education ("FAPE") after his suspension from BETA.

Consistent with the IDEA, the Regulations of the Commissioner of Education require the CSE to evaluate and recommend an appropriate educational placement for any child it identifies as disabled, within 30 days of the date of receipt of parental consent or within 40 days of receipt of referral, whicheverisearlier (8 NYCRR '200.4[c]).

Respondent district argues that petitioner's January 13 and April 8, 1993 letters did not constitute "referrals" to the CSE. Further, it contends that its CSE acted in a timely manner by recommending that the student be reclassified on June 22, 1993, within 30 school work days from its April 29, 1993 receipt of petitioner's consent to his evaluation.

Given the district's reluctance to declassify petitioner's son in September 1990, without evidence of any change in his condition, coupled with the student's continuing need for special support services, the December 21, 1993 letter from BOCES to the special education director terminating his program, and petitioner's January letter requesting assistance, there existed sufficient reason to suspect the student had a disability and to trigger a referral to the CSE. School administrators have a duty to refer a child directly to the CSE when there is a reasonable basis to suspect that the child may have a disability (8 NYCRR 200.4[a]; Appeal of a Student with a Disability, ___ Ed Dept Rep ___, Decision No. 12955, dated July 7, 1993; Application of a Child with a Handicapping Condition, 30 id. 424; see, 1987-88 EHLR 509:212).

In addition, I note that petitioner's letter of April 8, 1993 and her subsequent correspondence to the district reflect her growing frustration in trying to come up with the right words for a referral. Certainly, nothing in the law requires such specificity. To the contrary, specific information is required only for referral initiated by persons other than the parent, student or a judicial officer (8 NYCRR '200.4[a][2]).

Consequently, respondent district's actions were untimely due to its failure to refer the student back to the CSE when alerted in January of his need for special services and to make a recommendation within 40 days of such referral.

Petitioner's request for her son's immediate reinstatement in BETA must be denied because the record indicates that the program is not available in the summer. However, I note that the CSE has recommended and BOCES has agreed to the student's reinstatement in BETA in September for the 1993-94 school year.

The remaining question is the extent to which the student was denied appropriate services following his exclusion from BETA and may have experienced regression during that period. Since the record does not indicate the instruction he actually missed, it is incumbent upon the CSE to make that determination and to recommend additional services necessary to supplement his 1993-94 placement to offer him a meaningful education (8 NYCRR 200.6[j]; see, Johnson v Independent School District No. 4, 921 F2d 1022 [10th Cir. 1990]; Polk v Central Susquehanna Intermediate Unit 16, 853 F2d 171 [3d Cir. 1988]). Petitioner's son currently has eleven (11) credits toward his high school diploma. Considering the student's age, the CSE must determine what material he missed during his exclusion from BETA that may prevent him from otherwise graduating with his peers. To the extent the CSE determines that he missed critical instruction during that period or failed to receive a FAPE, the CSE must now consider remedial services, such as home tutoring, to provide him a meaningful educational program. Because respondent BOCES shares responsibility for the disruption in this student's educational program, the BOCES is directed to cooperate with the CSE in providing appropriate services to meet this student's needs.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that the Beacon City School District's committee on special education convene immediately to develop and implement a plan in cooperation with respondent BOCES to provide petitioner's son an opportunity to make up the school work he would have completed had he returned to BETA after his suspension in December 1992;

IT IS FURTHER ORDERED that all reference to the suspension of petitioner's son from the BETA program be expunged from his educational records;

IT IS FURTHER ORDERED that respondent BOCES revise immediately its student discipline policy to ensure full due process in accordance with this decision.

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