Appeal of JOHN and JANE DOE, on behalf of their child, from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding allegations of child abuse in an educational setting.

Decision No. 18,094

(March 3, 2022)

Law Office of Peter D. Hoffman, P.C., attorneys for petitioners, Peter D. Hoffman, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the superintendent of schools for the Board of Education of the Katonah-Lewisboro Union Free School District that their child (“the student”) was not subjected to child abuse in an educational setting.  The appeal must be dismissed.  

Petitioners registered the student in respondent’s district on or about February 10, 2021; he had previously resided in a different district in New York.  The previous district recommended placement in a special class.  Respondent implemented this recommendation until such time as it could convene a meeting of its Committee on Special Education (“CSE”) (see 8 NYCRR 200.4 [e] [8]).  Respondent’s CSE met on March 3, 2021 and also recommended placement in a special class.  At the March 2021 meeting, petitioners provided consent for the district to conduct a functional behavioral assessment (“FBA”).  The district, through an independent behavioral consultant, collected data concerning the student’s behavior between March 4 and April 9, 2021.

On April 14, 2021, petitioners alleged that the student had been subjected to child abuse in an educational setting.  The middle school principal replied later that day, indicating that he would investigate.[1]

By email dated April 15, 2021, petitioners told the principal that they had reported allegations of abuse to the State Police and the school resource officer.  Petitioners further indicated that they “welcome[d] any unbiased internal investigation.” 

By email dated April 20, 2021, petitioners supplemented their allegations of abuse, stating that the student was physically restrained at school for a “vast amount of time” and that the district regularly disciplined the student for behavior that was a manifestation of his disability.[2]

By letter dated May 4, 2021, the superintendent informed petitioners that he had “completed [his] review of the use of protective holds relative to [the student].”  The superintendent found that emergency interventions were:  (1) “implemented only at times when their use was appropriate and necessary for [the student’s] safety and/or the safety of others”; (2) “used only after non-physical de-escalation techniques proved to be ineffective”; (3) “implemented by staff who were appropriately trained; (4) “appropriately documented”; and (5) “not used as a form of discipline.”  The superintendent concluded that “use of the holds and the communication to [petitioners] complied with State regulations and ... [d]istrict policy ....”  The superintendent acknowledged petitioners’ concern regarding the lack of communication about the use of protective holds, indicating that he would revise district policy to address this concern.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 11, 2021.   

Petitioners argue that respondent acted illegally when district staff engaged in an excessive use of emergency interventions and failed to promptly notify them thereafter.  Petitioners request orders:  (1) reversing the superintendent’s determination; (2) declaring that the emergency interventions used on the student were abusive; (3) prohibiting all use of restraints and seclusion by respondent; and (4) declaring that respondent’s restraint and seclusion policy violates State and federal law. 

Respondent contends that district employees utilized “reasonable physical force” in all circumstances, as permitted by Commissioner’s regulations.  Respondent further argues that any physical restrains were employed under emergency circumstances and were used to protect the health and safety of the student and others.[3]

The bulk of petitioners’ claims must be dismissed for lack of jurisdiction.  Petitioners’ principal contention is that respondent did not comply with section 200.22 of the Commissioner’s regulations concerning emergency interventions for students with disabilities.  The Individuals with Disabilities Education Act (“IDEA”) and Education Law Article 89 provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education (“FAPE”) to such child (20 USC § 1415; Education Law § 4404 [1]).  Claims brought to enforce rights arising under IDEA must be addressed through the due process provisions of the IDEA and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Therefore, I lack jurisdiction to address any claimed violations of 8 NYCRR 200.22.  However, to the extent petitioner alleges that respondent failed to meet its obligations under Article 23-B of the Education Law, this claim is addressed below (see Appeal of M.B. and M.B., 56 Ed Dept Rep, Decision No. 17,044).

Education Law § 1125 (1) defines child abuse to include the following acts committed in an educational setting by an employee or volunteer against a child:

(a) intentionally or recklessly inflicting physical injury, serious physical injury or death, or

(b) intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death ....

State regulations generally prohibit the use of corporal punishment but permit “the use of reasonable physical force to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school or school district functions ... if that pupil has refused to comply with a request to refrain from further disruptive acts” (8 NYCRR 19.5 [a] [3]).  The regulation clarifies that such force should be used only when “alternative procedures and methods not involving the use of physical force cannot reasonably be employed....”

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have not met their burden of proving that the superintendent’s determination was arbitrary or capricious (Appeal of M.B. and M.B., 56 Ed Dept Rep, Decision No. 17,044; Appeal of S.S., 42 id. 273, Decision No. 14,852).  As proof, they submit a log of emergency interventions used on the student which document the date, time frame, setting or location of the emergency intervention used, as well as the staff involved, a description of the incident and whether any injuries were sustained, or a nurse evaluation was completed.  Petitioners suggest that the fact that “thirty-two restraints were used before [petitioners] were notified” is, ipso facto, “evidence of abuse.”  

The log entries demonstrate, however, that the emergency interventions complied with 8 NYCRR 19.5.  For example, the entries describe potential or actual injury to persons, damage to property, and disruption of the classroom (e.g., throwing toys, shoes, lunch items, educational materials, and a glass mug; screaming, spitting, hitting, pushing, kicking, running; grabbing at a staff member’s face, resulting in a broken pair of glasses; eloping from the classroom).  The log entries also reveal that staff members used procedures and methods that did not involve the use of physical force; for example, verbal de-escalation, physical redirection, suggestions to “take a break,” staff support, and reminders.  Therefore, the record supports the superintendent’s determination that respondent had no reasonable suspicion to believe that an act of child abuse had occurred.

In addition, the record supports a finding that respondent acted reasonably in investigating the incident.  Respondent’s assistant superintendent of human resources and instruction avers that she interviewed 11 staff members who had worked with the student.  Each member “indicated that protective holds were used as a last resort to maintain the safety of the student, as well as other students and staff, and to protect [d]istrict property.”  She further asserts that the interventions “were performed in compliance with” training previously delivered by the Crisis Prevention Institute.[4]  While petitioners complain that district personnel did not interview them, petitioners were not present during the alleged incidents and, thus, did not possess direct knowledge.[5]  Moreover, the district considered petitioners’ complaint and offered them an opportunity to submit additional information.  Having so concluded, it was not necessary for the superintendent to forward the report form to law enforcement authorities or to provide petitioner with a written statement setting forth parental rights, responsibilities and procedures (Appeal of S.S., 42 Ed Dept Rep 273, Decision No. 14,852).

In sum, I find that respondent conducted an appropriate investigation and reached a reasonable conclusion.  However, nothing herein should be construed as minimizing the seriousness of petitioners’ concerns—especially with respect to the frequency and duration of the emergency interventions.  Petitioners remain free to pursue other remedies which may be available to them, such as an impartial due process hearing under the IDEA (see 8 NYCRR 200.5).

THE APPEAL IS DISMISSED.

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