98-083

    Petitioner, the Board of Education of the Onteora Central School District, appeals from an impartial hearing officer's decision which held that petitioner had improperly suspended respondent's son from school in excess of 10 school days during 1997-98 school year without complying with the provisions of Federal and State law with regard to changing the educational program or placement of a child with disabilities. Respondent cross-appeals from the hearing officer's refusal to consider various issues regarding his son's classification, educational program, and placement which respondent initially raised in a post-hearing brief. The appeal must be dismissed, and the cross-appeal must be dismissed.

        Respondent's son is seventeen years old. The record contains virtually no information about the boy prior to the 1997-98 school year, when he was in the ninth grade in the Onteora Junior-Senior High School. In July, 1997, petitioner's committee on special education (CSE) recommended that respondent's son be classified as primarily learning disabled, and secondarily emotionally disturbed. It also recommended that he be placed in a self-contained class for English, mathematics, science, social studies, and study skills, and mainstreamed for physical education, art, and study hall. The CSE further recommended that the boy receive individual counseling, and certain testing modifications. The CSE's recommendations were apparently not challenged by either of the boy's parents.

        Respondent's son received a three-day out-of-school suspension on September 26, 1997 for allegedly having cut classes, leaving school grounds during the school day, and smoking on school grounds (Exhibit K). The individualized education program (IEP) which the CSE prepared for the boy in July included a behavior plan, which was modified by the CSE on October 1, 1997, to include, among other things, instructional detention, an individual aide, and a "crisis pass" to allow him to avoid confrontations. On October 10, 1997, the boy was suspended from school for one day and received a four-day in-school suspension for allegedly having cut and been late to his classes, smoking on school grounds, and verbally abusing the manager of a bookstore (Exhibit J). He reportedly failed to participate in his assigned in-school suspension, and received a five-day out of school suspension on October 30, 1997 (Exhibit H).

        The boy's IEP was reviewed again by the CSE on November 10, 1997. The CSE recommended that he continue to be classified as learning disabled and emotionally disturbed, pending neuropsychological , physical, drug, and alcohol evaluations. It suggested that the boy's family receive counseling, and indicated that the boy was at risk of having to be placed in a residential facility. The CSE also made certain changes to the boy's behavior plan, including the addition of a classroom behavior modification plan. It reviewed the boy's educational program again in December, 1997, while awaiting the results of all of the boy's evaluations. The CSE suggested that the boy's family consider a rehabilitation facility for him because he reportedly had a chemical addiction.

        The CSE met again on January 6, 1998. It recommended that the child be placed for part of the school day in a self-contained "ALP" class operated by the Ulster County Board of Cooperative Educational Services (BOCES), and for the remainder of the school day in a BOCES "Vo-Tech" program. The boy's parents accepted the CSE's recommendation with respect to the Vo-Tech program, but did not accept the recommendation for the ALP program. They requested that an impartial hearing be held to review the CSE's recommendation for the ALP program. The CSE also made a manifestation determination, i.e., it determined whether certain misconduct by the boy was a manifestation of his disability (see: 20 USC 1415 [k][4]; Application of a Child with a Disability, Appeal No. 97-64). The record does not reveal what specific misconduct was reviewed at that meeting.

        On February 10, 1998, the boy received a five-day in-school suspension because he had reportedly been found smoking on school grounds, displaying inappropriate behavior with another student, and being in the boys' bathroom with a female student (Exhibit F). Petitioner's building principal notified a local New York State Police investigator that a crime might have been committed on school premises, apparently with regard to the bathroom incident in which respondent's son was discovered with his girl friend in that room. By letter dated February 10, 1998, the CSE chairperson forwarded the boy's educational records, including his IEP, discipline record and reports of various evaluations, to the State Police Investigator (Exhibit 6). I note that the State Police ultimately concluded that no further action was warranted (Transcript, page 239).

        The boy was reportedly too upset to go to the alternative site for his in-school suspension, so the parties agreed that the boy would receive home tutoring as an interim measure. On February 11, 1998, the boy's mother and school authorities reportedly reached an informal agreement to have the boy receive two hours per day of tutoring at home (Transcript, page 316). On February 17, 1998, the CSE met with the boy's mother to review the boy's behavior and his educational program. It was agreed that the boy would receive up to four hours per day of instruction at home and would receive weekly counseling until the impartial hearing was completed (Exhibit 2). The hearing was to have taken place on March 23, 1998. On that date, the CSE recommended that the boy's classification be changed to multiply disabled, and that his educational program include the half-day Vo-Tech program and a half-day tutoring program to be provided at a neutral site, which was apparently the local library. The boy's tutoring was to consist of a minimum of two and one-half hours and a maximum of four hours per day to assist him in preparing for the GED examination so that he could obtain a GED diploma. The CSE also recommended that the boy receive a neurological evaluation to determine whether he had an attention deficit disorder. The parties agreed that the requested impartial hearing would be adjourned.

        On April 23, 1998, respondent's son was suspended from school for five days because he had reportedly brought a loaded pellet pistol to school, and had placed the pistol in another student's locker (Exhibit G). Once again, the principal notified the State Police that a crime might have been committed, and the CSE chairperson sent copies of the boy's records to the State Police. The chairperson notified the boy's parents that she had done so on April 13, 1998 (Exhibit 7).

        In accordance with the provisions of Section 3214 (3)(c), a hearing was held by petitioner's superintendent of schools to determine whether a longer suspension should be imposed upon the boy. The superintendent of schools concluded that no additional suspension should be imposed, and remanded the matter to petitioner's CSE (Exhibit 3). During the five-day suspension, the boy reportedly continued to receive tutoring, but he was not allowed to attend the Vo-Tech program.

        On May 28, 1998, the CSE reviewed the pellet gun incident, and determined that it was a manifestation of the boy's disability. It recommended that he remain in his tutoring and Vo-Tech programs, and that the previous stipulation that he not be on school grounds remain in effect.

        Respondent, who apparently does not reside with his son, requested the hearing in this proceeding on April 23, 1998. Petitioner appointed the hearing officer on April 27, 1998. On May 15, 1998, the parties attempted to frame the issues to be decided by the hearing officer. The hearing officer reserved decision on that matter to allow the parties an opportunity to brief their respective positions. When the hearing reconvened on July 1, 1998 the hearing officer ruled that it was beyond his jurisdiction to determine whether petitioner's release of the boy's educational records to the State Police violated the Family Educational Rights and Privacy Act (20 USC 1232-g), also known as FERPA, but that he would consider whether petitioner had complied with the provisions of 20 USC 1415 (k)(2) in sending those records to the police. He declined respondent's request that he consider petitioner's alleged systemic violations of the law, and indicated he would consider only the actions which petitioner had taken with regard to respondent's son. The hearing officer ruled that any issue which was raised, or which could have been raised in the superintendent's disciplinary hearing was beyond the scope of the hearing in this proceeding. However, he indicated that he would consider whether the boy's suspension from school had been consistent with the provisions of the Individuals with Disabilities Education Act (IDEA). The hearing officer also rejected respondent's claim that there was a substantial evidence test to determine whether a referral should be made by school officials to the police pursuant to 20 USC 1415 (k)(9).

        The hearing officer took testimony on July 1 and July 23, 1998. He rendered his decision in this proceeding on November 30, 1998. He noted that respondent had raised a number of issues about the nature of his son's disability and the boy's educational program in a post- hearing memorandum of law. He declined to address the merits of those issues because they had not been identified during the hearing, and evidence had not been presented to enable him to fully consider them. The hearing officer identified the two issues which were properly before him as being whether the school district had violated the boy's rights by disclosing his educational records to the police, and whether the boy's suspensions from school had violated the IDEA.

        With regard to first issue, the hearing officer noted that 20 USC 1415 (k)(9) provides as follows:

"Referral to and action by law enforcement and judicial authorities:

(A)  Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

(B)  An agency reporting a crime committed by a child with a Disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime".

        The hearing officer rejected respondent's contention that the boy's records had been given to the police to conduct a "fishing expedition" to find evidence of criminal activity. He found that it was the responsibility of law enforcement agencies, rather than school districts, to determine if crimes have been committed, and that petitioner's staff had a reasonable basis to believe that the boy's sexual activity in school and the pellet gun incident might constitute crimes under the Penal Law. The hearing officer further found that the provisions of 20 USC 1415 (k)(9) authorized petitioner to report the suspected crimes to the police, and required it to furnish the boy's records once a referral had been made. He noted that the U.S. Department of Education had not yet promulgated regulations to implement the provisions of 20 USC 1415 (k)(9). The hearing officer further noted that an existing IDEA regulation, 34 CFR 300.571 specifically incorporated the FERPA regulations regarding the release of records without parental consent, and that those regulations provided for another means of redress for alleged violations, which was consistent with 8 NYCRR 200.2 (b)(6) and 200.5 (f). He concluded that the confidentiality issue was therefore not properly before him.

        On the issue of the boy's two suspensions in February and April, 1998, the hearing officer noted that the boy had not served the February suspension because the school and the boy's mother had agreed on February 11, 1999 to an alternative placement, i.e., home instruction, and that the boy was not suspended from his Vo-Tech program. For the pellet gun incident in April, 1998, the hearing officer found that the boy had not been suspended from his tutoring, but he had missed four days of his Vo-Tech program. He further found that the boy had been suspended for a total of 13 days, including the April suspension, during the 1997-98 school year. The hearing officer noted that 20 USC 1415 (k)(1) provides that:

"(A) School personnel under this section may order a change in the placement of a child with a disability.

(i) To an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities; and

(ii) to an appropriate interim alternative education setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if - (I) the child carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local education agency ... "

        The hearing officer construed the statute as limiting the cumulative duration of suspensions in one school year to not more than ten days, and requiring that the 45-day period applicable to a weapons offense be spent in an appropriate interim alternative educational setting. He determined that a suspension from school does not constitute an appropriate alternative educational setting, and found that petitioner had acted improperly in suspending respondent's son in excess of ten school days during the 1997-98 school year without first invoking the due process procedures of Federal and State regulations which are used to change a child with a disability's program or placement.

        As noted above the Board of Education has appealed from the hearing officer's decision, and respondent has cross-appealed from that decision. Respondent's cross-appeal will be addressed first because it raises a question about the scope of this proceeding. Respondent asks that I consider each of the alleged violations of his son's rights under the IDEA, including petitioner's alleged failure to properly evaluate and classify the boy, as well as its alleged failure to prepare an appropriate IEP for him. Respondent contends that the combination of tutoring and Vo-Tech, which the boy's mother had agreed to, was inappropriate and inconsistent with the requirement that a child with a disability be educated in the least restrictive environment. He also seeks reimbursement for the cost of counseling provided to his son during the 1997-98 school year, which was reportedly paid for by his insurance company.

        The Board of Education opposes respondent's attempt to raise these issues because they were not identified by respondent as the issues to be determined at the outset of the hearing. It also asserts that the combination of tutorial and Vo-Tech programs were approved by the boy's parents and their advocate. Petitioner contends that the hearing officer properly rejected respondent's attempt to broaden the scope of this proceeding to include the issues raised in respondent's post-hearing memorandum of law.

        I concur with the hearing officer's determination that the issues of evaluation, classification, placement, and reimbursement are beyond the scope of this proceeding because respondent failed to raise these issues in a timely fashion. I do not review issues which were not properly raised at an impartial hearing (Application of a Child with a Disability, Appeal No. 98-14). I must also concur with the hearing officer's determination that an impartial hearing under the IDEA cannot be used to collaterally attack disciplinary determinations made pursuant to Section 3214 of the Education Law (Application of a Child with a Disability, Appeal No. 97-64), or to resolve purely FERPA issues (Application of a Child with a Disability, Appeal No. 94-9; Application of a Child Suspected of Having a Disability, Appeal No. 96-61). However, the IDEA regulations also provide for maintaining the confidentiality of student records, and should be considered in this proceeding. I find that respondent's cross-appeal must be limited to challenging the hearing officer's findings about the propriety of notifying the police about the boy's suspected crimes and releasing his records to the police.

        At the hearing, respondent questioned petitioner's CSE chairperson about the decision to refer the two disciplinary incidents to the police. The CSE chairperson testified that the principal had made that decision. The principal testified that he had made the referrals to the police. With regard to the February incident involving respondent's son and a female student in one of the school's bathrooms, the principal testified that "...We felt there was a need to call ...the police and let them know because there may have been something criminal done but we couldn't determine it ourselves" (Transcript, p. 229). The record before me does not reveal the female student's age, or the circumstances preceding the discovery of the two students in the bathroom. Therefore, neither the hearing officer nor I could determine whether a crime had in fact been committed. Although I agree with the hearing officer that school officials cannot be expected to be experts in criminal law, they should make some effort to investigate the facts and consult with counsel before determining that an incident should the referred to the police. However, I recognize that this is a new statutory provision. I specifically reject respondent's contention that petitioner was required to have substantial evidence of the commission of the crime. Under the circumstances, I cannot find as a matter of law that petitioner violated the statute with regard to the February incident.

        The April incident involved a pellet gun. I note that 20 USC 1415 (k) (10) (D) defines the term "weapon" by incorporating the definition of the term "dangerous weapon" set forth in 18 USC 930 (g) (2). In view of respondent's concession at the hearing that the nature of the gun was not in contention (Transcript, p. 270), I have not considered the statutory definition. I find that petitioner acted properly in making the referral to the police regarding the April incident.

        I find, as did the hearing officer, that the mandatory language of 20 USC 1415 (k) (9)(B) required petitioner to furnish copies of the boy's special education and disciplinary records to the police. The IDEA regulations which were in effect at the time of the two incidents provided that parental consent must be obtained before personally identifiable information about a child with a disability is released by school officials to third parties, with certain exceptions which are not relevant here (34 CFR 300.571 [a]). Those regulations predated the 1997 amendments to the IDEA which require school officials to furnish information to the police when a crime has been committed. Although the new regulations implementing the amended IDEA did not take effect until after the referrals to the police had been made, I must note that the new 34 CFR 300.571(a) provides that parental consent is not required for the disclosure of information pursuant to 34 CFR 300.529 (b), which implements the amended IDEA provision requiring that records be furnished to the police. I find that petitioner did not violate respondent's rights by failing to obtain his consent for the release of his son's records to the police. I must therefore dismiss his cross-appeal.

        The Board of Education appeals from that portion of the hearing officer's decision which held that it was improper for petitioner to suspend the child from his Vo-Tech program for four days in April, 1998 after the pellet gun incident without having invoked the procedures required by Federal and State law for changing the boy's placement or program. The hearing officer held that those procedures should have been invoked because the boy had been previously suspended from school for nine days during the 1997-98 school year, and the law required use of the change of placement or program procedures when a child with a disability is suspended from school for more than ten school days during any school year. He noted that petitioner's CSE had reviewed the boy's behavior after the February and April misconduct incidents, the determine whether the boy's misconduct was a manifestation of his disability, but he held that those manifestation reviews did not relieve petitioner of its obligation to comply with the change of placement or program requirements.

        Petitioner contends that the hearing officer misinterpreted the provisions of the amended IDEA. It asserts that his misinterpretation would prohibit a board of education from suspending a child with a disability who had previously been suspended from school during the same school year, even if the board of education provided individual tutoring to the child during the new suspension, because a certain amount time is required to give notice of the CSE meeting to make a manifestation determination, or to prepare an interim alternative education setting for the child pursuant to 20 USC 1415 (k).

        In Honig v. Doe and Smith, 484 U.S. 305 (1998), the Supreme Court determined that a long-term suspension of a child with a disability for more than ten days was impermissible because it would constitute a unilateral change of the child's placement without the procedural safeguards afforded to the child by the IDEA. The Commissioner of Education has held that a series of short-term suspensions over the course of the school year may also constitute a unilateral change of a child's placement (Appeal of the Child with a Handicapping Condition, 28 Ed. Dept. Rep. 342). The amended IDEA provides that a free appropriate public education must be available to all eligible children with disabilities, including those who have been suspended or expelled from school (20 USC 1415[k]). In its official interpretation of its new regulations implementing the amended IDEA, the U.S. Department of Education has indicated that:

"Under Sec. 300.520(a)(1), school personnel may order removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removal of not more than 10 consecutive school days in that school year for separate incidents of misconduct, as long as these removals do not constitute a change of placement under Sec. 300.519(b)." (34 CFR Part 300, Appendix A, Question 40)

The new 34 CFR 300.519 reads as follows:

"For purposes of removals of the child with a disability from the child's current educational placement under Secs. 300.520-300.529, a change of placement occurs if -

(a)The removal is for more than 10 consecutive school days; or

(b) The child is subject to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed and proximity of the removals to one another."

        Although this new regulation did not take effect until after respondent's son had been disciplined, I have considered its provisions because they do not constitute a substantive change in the law regarding the discipline of children with disabilities in New York (see Appeal of a Child with a Handicapping Condition, supra). In this instance, respondent's son had received either in-school or out-of-school suspensions on four occasions prior to his suspension for the pellet gun incident in April, 1998. As noted by the hearing officer, the April suspension exceeded the 10-day cumulative limits. Although there are specific provisions in the IDEA for dealing with children with disabilities who bring weapons to school, e.g., placement in an alternative education setting pursuant to 20 USC 1415 (k)(1), I must agree with the hearing officer that petitioner's response to the incident did not constitute placing the child in an alternative educational setting.

THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS DISMISSED.