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Saturday, May 23, 2015

The New York City Department of Education Changes the Rules For Intervention and De-Escalation of Students in Behavioral Crises

Courtenaye Jackson-Chase, Carmen Farina, and others at the PEP

Let's see whether the DOE is serious about this De-escalation plan, and how its implemented.

Betsy Combier
Remember, words are cheap and all the world's a stage and all the men and women merely players...
"... They have their exits and their entrances, And one man [woman] in his [her] time plays many parts..."
Shakespeare, As You Like It, spoken by the melancholy Jaques in Act II Scene VII.

The Seven Ages of Man by William Mulready, 1838, illustrating the speech


Thursday, May 21, 2015, New York, NY— Legal Services NYC (LSNYC) applauds the actions of the New York City Department of Education’s Panel for Educational Policy, which voted unanimously last night to approve much-needed changes regarding intervention and de-escalation, and contacting 911 for students experiencing behavioral issues.
The vote comes as a result of a December 2014 settlement between the City of New York and LSNYC, which represented a group of students who had been improperly removed from school and taken by ambulance to city emergency rooms because of classroom behavior. That lawsuit was originally filed during the previous administration against the City of New York, the Department of Education, and the Fire Department.
In addition to providing guidance to New York City public school staff as to when school officials should call 911 for a child experiencing an emotional, behavioral, or psychiatric event, the new regulation will, for the first time, require all NYC public schools to develop and maintain a Crisis De-Escalation plan. The regulation will require staff to attempt to reach a parent and give them an opportunity to speak with their child, and to make every effort to de-escalate the behavior using strategies and interventions for behavioral crisis as well as the resources identified in the school’s Crisis De-Escalation Plan.
The new regulation further states that in no circumstance should 911 be used as a disciplinary measure because of a student’s behavior, and that following any crisis, school officials should meet with the parent (and student if appropriate) to discuss appropriate behavioral supports and interventions for the student.
“When I first came to Legal Services I was completely distraught,” said Rhonda Thurston, whose son was just five years old when the lawsuit was filed. “[The school] ended up calling the police on my son, they ended up sending my son to the psychiatric ward three different times. A child shouldn’t have to go through that.”
“Last night’s vote was an important step toward ending the practice of sending students to hospital emergency rooms unnecessarily,” said LSNYC SeniorStaff Attorney Nelson Mar. “This practice affects thousands of parents annually and costs the city millions in unnecessary medical costs. The new regulation, A411, will hopefully provide schools with much needed guidance on how to respond to students in crisis or engaging in serious disruptive behaviors.”
The new regulations will become effective on August 1, 2015. A copy of Chancellor’s Regulation A-411 is available here.

RE-POST (2014): Dr. Patsy Perkins Wins Her U-Rating Appeal Given By MS 232 Principal Neifi Acosta

The random standards of the NYC Department of Education can be frightening, and the most frightening part of the public school system is the random and arbitrary nature of sudden attacks and/or resolution. Almost none of the decisions are handed out as a straight line from the merits of the case to the penalty. What seems to matter are: politics, who is arguing, what testimony is given, who knows whom in the "higher ups", who is sleeping with whom, etc

Staff members never know when they are suddenly going to be accused of something, put into a 3020-a, or discontinued; Principals who do wrong things stay, while principals who either do nothing wrong or make a minor mistake, are fired; parents are not told about incidences in the school until their child is suspended or expelled, and even then do not know what happened; children who misbehave constantly stay, while those harmed are told to leave. Don't even try to generalize. You will be wrong.

This randomness is destructive. There is no oversight at the NYC DOE , no "ethics" officer or compliance expert to guide the moves of the people who run this terribly destructive business.

In 2014 I posted the story below on this blog, to show the ruling of Judge Shlomo Hagler when he granted an Article 78 for a teacher, Dr. Petsy Perkins. See Judge Shlomo's ruling in the case, below.

Niefi Juan Acosta
Acosta was accused of threatening the staff in 2013:

EXCLUSIVE: Bronx principal allegedly tells teachers he
wants to blow them up


Neifi Juan Acosta, 56, made the frightening remark at a post-Hurricane Sandy meeting in November at Intermediate School 232, according to several staff members who were present. ‘He said, “One day I’m going to blow this place up,”’ according to a veteran teacher.


Published: Tuesday, June 18, 2013, 12:30 AM

Updated: Tuesday, June 18, 2013, 2:00 AM

If a teacher, principal, student or parent who was not "favored" by the NYC DOE said this, he/she would be removed from his/her job/class/school and tarred and feathered.

Here is my 2014 post:

Dr. Patsy Perkins Wins Her U-Rating Appeal To The Supreme Court (April, 2014)
Wolf & Wolf LLP, Bronx (Edward H. Wolf and Jason M. Wolf of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York City, for respondent.
43 Misc.3d 903 (2014),
984 N.Y.S.2d 864
2014 NY Slip Op 24121


 Supreme Court, New York County.
Decided April 30, 2014.
 [43 Misc.3d 904]
 Michael A. Cardozo, Corporation Counsel, New York City, for respondent.



 Petitioner Patsy Perkins (Dr. Perkins or petitioner) moved by notice of petition and verified petition seeking to vacate and annul her unsatisfactory ratings for the academic school years 2008-2009 and 2009-2010 issued by respondent New York City Department of Education (DOE or respondent). Respondent interposed a verified answer and opposed the verified petition.


 Dr. Perkins has been employed with the DOE since 1994. On or about June 12, 2000, the DOE appointed petitioner as an assistant principal. In or about August 2007, Dr. Perkins was assigned to M.S. 232 in the Bronx, New York as a tenured assistant principal of mathematics and science. For school year 2008-2009, principal Neifi Acosta at M.S. 232 completed the requisite "Pedagogical Supervisory Personnel Report" (annual review) dated June 19, 2009 and petitioner received an overall unsatisfactory evaluation. Principal Acosta did not complete the section of documentation in the annual review. (Exhibit A to the verified petition.) On or about June 22, 2010, principal Acosta gave petitioner a second unsatisfactory rating for school year 2009-2010. (Exhibit B to the verified petition.)

 Petitioner filed for review or appeal of both unsatisfactory ratings and a hearing was conducted on November 10, 2010. (Exhibit U to the verified answer.) At the hearing, petitioner objected that respondent failed to send documents for the hearing to the Office of Appeals and Reviews (OAR) in a timely manner. More significantly, petitioner was not furnished with documents that principal Acosta utilized to support the unsatisfactory ratings until the day of the hearing. In addition, petitioner also objected that principal Acosta failed to indicate in the rating sheet which "areas of service in Section B, Document 1.7 were deemed unsatisfactory ... and the key to documentation has been left blank." (Exhibit V to the verified answer.) All of the above objections were denied. (Id.)

 At the hearing, respondent heavily relied upon documentation to support the unsatisfactory ratings. With regard to the first unsatisfactory rating, respondent primarily relied upon three letters, one dated May 19, 2009 and two dated June 2, 2009. (Exhibits D, G, and J to the verified answer.) As for the second unsatisfactory rating, respondent submitted four letters dated March 23, 2010, April 12, 2010, June 9, 2010 and June 16, 2010. (Exhibits O, P, Q and R to the verified answer.) In two undated findings, the chair recommended that petitioner's appeal should be denied and the unsatisfactory ratings should be sustained. (Exhibits V and W to the verified answer.)     [43 Misc.3d 905]In letters dated August 11, 2011 and May 2, 2011, the Chancellor's designee, Senior Deputy Chancellor Shael Polakow-Suransky, denied petitioner's appeals and sustained both unsatisfactory ratings. (Exhibits X and Y to the verified answer.)

 Thereafter, in or about September 2011, petitioner commenced this CPLR article 78 proceeding challenging the unsatisfactory ratings for school years 2008-2009 and 2009-2010. In or about January 2012, respondent interposed a verified answer to the verified petition.



 The standard to review an administrative determination is set forth in CPLR 7803. The scope is limited to "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed" (CPLR 7803 [3]). Thus, a court may not disturb an administrative determination unless there is no rational basis for it in the record or the determination is arbitrary or capricious (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 [1974]). The arbitrary and capricious test relates to whether the administrative action should have been taken or is justified or if, conversely, the action is without sound basis in reason and is generally taken without regard to the facts (id. at 231).


 A hearing officer's determination as to the credibility of witnesses is entitled to deference and is "largely unreviewable because the hearing officer observed the witnesses" (Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 A.D.3d 563, 568 [1st Dept 2008]). Courts are generally reluctant to set aside administrative determinations due to technical deficiencies where the DOE fails to strictly comply with the procedures set forth in the rating handbook promulgated by the Chancellor (Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 A.D.3d 486, 487 [1st Dept 2011]). However, where the deficiencies in the review process are not merely technical, "but undermined the integrity and fairness of the process," that would amount to a deprivation of a substantial right which is not waivable       [43 Misc.3d 906]
(Matter of Kolmel v City of New York, 88 A.D.3d 527, 529 [1st Dept 2011], citing Matter of Blaize v Klein, 68 A.D.3d 759 [2d Dept 2009], and Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 A.D.2d 832, 834 [2d Dept 1981]).


 Petitioner alleges that respondent failed to follow its own procedures in completing the annual reviews as well as in the appeal review process which deprived her of a substantial right to a fair hearing. Specifically, petitioner claims that principal Acosta failed to indicate in the rating sheet which areas of service were deemed unsatisfactory and omitted any documentation to support the unsatisfactory ratings. Moreover, petitioner claims that respondent failed to send documents for the hearing to the OAR in a timely manner and that she was not furnished with documents that principal Acosta utilized to support the unsatisfactory ratings until the day of the hearing in contravention of respondent's own rules. (Exhibit B to affirmation of Edward Wolf in support of petition, dated May 11, 2012 [Wolf affirmation], The Appeal Process, Section I, Article 2 [a], [b], [c].)

 Respondent argues that these alleged errors were mere technical deficiencies and the record supports the findings of the unsatisfactory ratings primarily relying upon Matter of Brown, which held that the failure to annex documentation to the annual review did not constitute a meaningful violation of lawful procedure.


 While some confusion still lingers as to the proper standard to employ where the DOE fails to comply with the procedures set forth in the rating handbook or in the appeals process promulgated by the Chancellor, it appears that the appellate courts have overlooked mere technical deficiencies where there is other persuasive evidence in the record and it does not deprive the petitioner of a substantial right. It is also necessary to fully explain Matter of Brown, which does not stand for the proposition that every technical deficiency by the DOE must be overlooked. However, in Matter of Brown the First Department tolerated the DOE's failure to annex documentation to the annual review because there was other persuasive testimony in the record from the principal and the assistant principal who
[43 Misc.3d 907]
made "individual assessments ... based on their personal classroom observations" (89 AD3d at 487).

 In this case, it is uncontroverted that principal Acosta failed to complete the section of documentation on the annual reviews to support the unsatisfactory ratings in compliance with procedures promulgated by the Chancellor. This deficiency was compounded by the fact that the respondent failed to furnish petitioner with a complete set of documentation used by principal Acosta to support the reasons for the adverse ratings prior to the hearing on November 10, 2010. (Exhibit B to Wolf affirmation, The Appeal Process, Section I, Article 2 [a].) Unlike in Matter of Brown, the respondent here heavily relied on the total of seven letters that was not provided to petitioner prior to the hearing and just one observation report to support the unsatisfactory ratings. Based on the totality of the circumstances, it is apparent that the deficiencies in the review process were not merely technical "but undermined the integrity and fairness of the process," thus depriving petitioner of a substantial right which was not waivable. (Matter of Kolmel, 88 AD3d at 529.)


 Accordingly, it is ordered and adjudged, that the petition is granted to the extent of annulling the unsatisfactory ratings for school years 2008-2009 and 2009-2010 and the matter remanded to respondent New York City Department of Education for further review consistent with this decision and order, and it is further ordered, that the clerk shall enter a judgment accordingly.