It’s Toolbox Tuesday! Pennsylvania case shows how to use Tool #4.

On Tuesdays around here we like to highlight The Toolbox—a full day training program addressing your options when dealing with students with disabilities who present challenging behaviors.  Tool #4 involves a request for an expedited hearing to seek the removal of a student to an interim setting. We don’t see a lot of Tool #4 cases, but we found one from Pennsylvania that provides a textbook example of how and when this Tool should be used.

The student moved to the Upper Dublin School District in Pennsylvania at the start of this school year.  The student had been in a “neighboring state” in prior school years. The Upper Dublin district had the student’s latest IEP, but not a lot of other records. It implemented the existing IEP as the school year began, and things went just fine….for awhile.

The first major incident was on October 27th, when the student cursed, yelled and elbowed a teacher in the stomach.  Three day suspension.

November 17th--“another behavior incident, involving aggression toward students and staff, incendiary and threatening remarks, profanity, and toppling or attempting to topple furniture.  Six day suspension.

November 19th: the father filed for a due process hearing.

Early December: the district completes its evaluation of the student, rules out autism, but finds he has an emotional disturbance.

December 14: “another behavior incident….profanity, incendiary remarks, and threats to the school…destroyed property and threw objects…attempted to topple the conference room table.”  Five day suspension. That brings the cumulative total to 14 days of suspension—all within one semester of school.  Pennsylvania law requires an IEP Team meeting after 15 cumulative days.

December 22: IEP Team concludes that the student’s behaviors are a manifestation of his disability. No one disagrees.

There was one more incident on December 23rd, the last day before the break. The IEP Team conducted another MDR about this on January 7th and again concluded that the behavior was a manifestation of disability.  The district then began to explore private placements for the student.

January 13: the district recommends placement at its expense in a private school. But the father does not agree.

Let’s summarize: we have a student with a serious emotional disturbance whose behavior has escalated over the course of the year.  District staff report that the student does not de-escalate.  They are worried about someone getting hurt.  They have proposed a change of placement, but the father does not agree to it and thus under “stay put” the student remains where he is.  This fact situation is a prescription for the use of Tool #4—a request by the district for an expedited hearing to move the student to an interim setting for up to 45 school days.

The hearing officer held that the district carried its heavy burden of proof:

On this record, the District has carried its burden of proof that maintaining the student’s current placement is substantially likely to result in injury to the student or others.  This finding is based on the fact that each of the incidents of note (October 27th, November 17th, December 14th and December 23rd) involved contact with another individual, or non-contact aggression directed at another individual, and/or the throwing of objects or violent moving of furniture. The student also voiced threats to self and/or others over the course of these incidents. Finally, the testimony of District witnesses was credible and persuasive that the amplified intensity of the behaviors, and increasing difficulty in de-escalation, from incident to incident was a particularly grave concern.

The hearing officer ordered that the student be placed at the private program the school had recommended for 45 school days, during which time the parties would work toward a more permanent solution.

That’s how Tool #4 works. You want to change the student’s placement, but the parent will not agree. The behaviors of the student are a manifestation of the student’s disability. You are concerned that if things stay as they are, someone is going to get hurt.  There are no “special circumstances” present, so the law does not allow any school official to remove the student unilaterally. But you can seek an order from the hearing officer, as the Upper Dublin district did here.

The case is Upper Dublin School District, decided by a Pennsylvania special education due process hearing officer on February 10, 2016.  We found it at 116 LRP 8837.