Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

__________________________________________ In the Matter of Mr. _, on behalf of __, Petitioner, Findings of Fact and and Decision School District, Respondent. __________________________________________

This case was brought before me upon my designation as impartial hearing officer to hear this matter, pursuant to the Individuals with Disabilities Education Act, 29 U.S.C. §1415(f)(1) and Part 200 of the Regulations of the New York State Commissioner of Education.

_________________ (__) is an -year-old student residing in the School District (district) who has been attending the _________________ School (_________________). _______________ (Mr. _), his father, referred him to the district’s CSE for special education, which found that he was not eligible for special education services. Mr. _ brought this hearing charging the district had failed to provide __ with a free appropriate public education (FAPE) for the 2010-2011 school year and seeking reimbursement for tuition at the school for the 2010-2011 school year.

Both Petitioners and Respondent school district were represented by counsel. The district was represented by Esq., of LLP. The parents were represented by , Esq.

PROCEDURAL HISTORY

There were two days of hearing, held in the school district. Hearings were conducted on January 4 and February 8, 2011. Requests for extensions of time were granted in this case, making the final decision due date May 9, 2011.

DISTRICT CASE

, Coordinator of Special Education for the district’s high schools, testified that after receiving a request from Mr. _ on May 10, 2010, she spoke with him. He told her his son had been engaging in illegal activities regarding drugs, and had been put in a school upstate. He had been told by Mr. his attorney, to request an evaluation. (Tr. 27-29) She met with Mr. _ on May 25, 2010, and he reiterated his reasons for placing __ in the _________________ School and stated that his son was now doing “fabulously” in the school. (Tr. 31) He was specific about his son’s activities, and stated that __ didn’t apply himself to his fullest potential, but was an average student doing okay in school. He didn’t think __ had an emotional disability. He told her that he didn’t know why he was meeting with her, but he was told he could get funds to pay for __’s education. (Tr. 32-33) A evaluation and a social history were conducted, and the CSE met to review the evaluations and make a determination. (Tr. 33-37) At the meeting, information was provided by Mr. __’s general teacher, and Mr. the director of the program. They told the committee that the student was performing well academically, that his grades were at least in the s or s, that he was well behaved and not disruptive in class. They felt he did not sometimes put forth his best effort, but he was academically capable and doing fine. (Tr. 37-38) the district’s reported that he had overall cognitive ability,

, and that socially and emotionally there was really nothing remarkable. Ms. told the CSE that there were a couple of isolated subtests that might have been a little lower, but nothing significant. (Tr. 38-39) The minutes of the meeting noted that Mr. reported the results of the initial intake, that the student was engaging in risky behavior and had substance abuse issues, but that he was doing academically well and adjusting well to the program. (Tr. 43-44; Ex. 3) The minutes also noted the opinion that statements about possible depressive symptoms were inconsistent with his current clinical profile, and that the initial intake had been conducted just a few days after he was removed involuntarily from his home and he was clearly not happy to be away from his friends. She did not see him as having any depression. (Tr. 44-45, 84-85) Ms. stated that most participants at the meeting agreed that the student did not qualify as having a disability, but Mr. stated he disagreed, and that __ had an . He kept saying, “It’s by diagnosis. He has an by diagnosis.” Ms. said that he was referring to the school’s intake report by Dr. (Tr. 46-47; Ex. 7) She explained that the diagnoses were alcohol abuse, cannabis abuse, and disorder. Ms. testified that the alcohol and drug problem did not qualify the student for special education services. She stated that the was not a diagnosis of , but more suggestive of than She noted that Dr. report said his determination was that the student didn’t show any indication of major disorder, and there was nothing in his report reflecting an opinion that __ needed special education services. Nor did Mr. ’s letter or the MACI results indicate a need of special education services for __. (Tr. 50-52; Exs. 6, 7, 8)

Ms. stated that according to __’s report card from ____________ High School h (____________), which he had attended in and grade, 2007-2008 and 2008-2009, showed he was on his way to receiving a high school diploma. (Tr. 53-54) She agreed that tests conducted by Ms. showed his grade equivalent in reading to be years behind and his passage comprehension to be years behind, but stated that they don’t consider grade equivalent in schools. (Tr. 63-64) On cross examination she stated that the grade equivalent scores did not indicate a question as to __’s ability to function on grade level, as he was doing so without support in mainstream classes and passing those classes. The district looks at percentile scores, and classroom performance and grades. (Tr. 79-83) She agreed that the initial evaluation for by Dr. reported that the student said he basically cheated his was through school, but argued that his scores on the Regents exams belied that statement. (Tr. 62) She agreed that she did not know whether __ cheated; cheating was not discussed at the CSE meeting. (Tr. 79-83)

Ms. conceded that the committee did not reach consensus, stating that it was not a vote. (Tr. 61) She testified that she was never given letters from ____________ or the child’s and that no one contacted either ____________ or the child’s (Tr. 68-69; Exs. A, B) She stated that the observed him, but conceded that she did not see him a class and there was no separate written observation; there was no mention in the s report of an observation. (Tr. 69-70) Ms. agreed that the issue underlying the student’s behavior was the divorce of his parents and that the _________________ school officials thought the student exhibited emotional trauma and would not be successful without the structure of the therapeutic boarding school. She accepted as valid the MACI hypotheses of social and negativistic personality traits, avoidant and self-defeating features, disorder, and disorder. The district did not think he needed to be evaluated by a . (Tr. 74-77; Ex. 8)

, testified that she tested __ at the _________________ School. (Tr. 90-92; Ex. 4) The background information in her report was from documents as well as her conversation with him. She stated that it was easy to build a rapport with __, who was very nice, well mannered and pleasant. (Tr. 93) She gave him the entire battery of assessment for the WAIS. He had a full scale IQ of , well within the range. (Tr. 95-96) She also gave him achievement testing, and testified that he performed within the broad math and written areas, and in broad reading, which complemented his reading score on the WAIS. (Tr. 97-99) Passage comprehension h at the percentile was (Tr. 129-130) She stated that based on these scores and his academic achievement in school, a learning disability didn’t appear to be present. (Tr. 99-100) Ms. also conducted a BASC 2, which she described as a scale to assess social-emotional behavior functioning. The BASC is a self-reporting instrument. The clinical scale score showed no area of concern; the only concern that appeared was sensation seeking. (Tr. 101-102) She stated that she observed __ for about 2-1/2 hours or more. (Tr. 100) She also observed him in the school’s “morning meeting,” around noon, where daily schedules are given out for extra help or for after-school activities, and they do a sort of group recitation to focus students for the day. She watched __, who was very attentive, and participated in the activities. (Tr. 103-104) On cross examination, she conceded that she didn’t write up anything about her observation and she didn’t observe him in an academic setting, but argued that observations didn’t have to take place in an academic setting. It was discussed at the meeting, as were the observations of his performance within the classroom offered by one of the teachers at the school. (Tr. 120-121) She did not believe __ needed special education services. (Tr. 115) __’s alcohol and marijuana abuse were mentioned in the CSE discussion, but she didn’t know about the disorder, which she dismissed as having been how he presented during the initial meeting at the school. Her follow-up was the BASC to get another form of emotional behavior. She testified that the diagnosis was not considered by her or by the CSE during its review, that it was “just what Dr. wrote in his initial intake of __.” (Tr. 140- 141) She noted that he stated that the s probably a result of estranged interfamilial relationships. (Tr. 141) She stated that her conclusion that __ was not emotionally disturbed was based on the BASC and her observations, explaining that he has affect and is very engaging, whereas an emotionally disturbed student typically cannot be as personable. She testified that there is a difference between being maladjusted and making poor decisions versus a student who is emotionally disturbed. (Tr. 144-145) If a student was emotionally disturbed, it would show a consistent profile upon entry and upon moving forward and his taking the BASC. (Tr. 146-147) When asked for any evidence to contradict the diagnosis given by Dr. she stated that she was not a doctoral to have enough knowledge to talk about Axis and diagnosis and was not qualified to refute his diagnosis. (Tr. 147-149)

On cross examination, she testified that __ said he had made a lot of mistakes and hurt his father, who had sought the best response for his behaviors.. He was afraid if he came home, he was going to meet with his old friends. (Tr. 109) He stated that he hoped he could carry through on what he had learned at _________________ and make better decisions, but he expressed concerns about regressing. (Tr. 110) Ms. testified that she did not think it was appropriate to conduct a functional behavior analysis (FBA). (Tr. 112-113) She stated that she wasn’t asked to do that, and that there was a behavior plan in his program. (Tr. 113) She recalled that the team was in agreement that he didn’t have a disability, except the parent, Mr. _, and the school. (Tr. 114) She stated that she would have been very comfortable with __ in any kind of academic setting. The father told her that he would have kept him at _________________ to keep him from making poor decisions, which she felt was part of a parent’s decision to make the best decision for his child. His position was clear during the meeting. (Tr. 115-117) __ told her he liked the structure of the school. He was making average academic progress. (Tr. 118-119) The school has a typical class size of students, like a small setting. (Tr. 121) She stated that the entire structure of the school provides a very strict schedule and regimen, and that their teachings are not only academic, but at lunch they have opportunity for meaningful talk. (Tr. 136) She thought that group is part of the program at _________________. (Tr. 124) She thought __ was adhering to the rules provided by the school. (Tr. 137)

Ms. testified that there was no discussion at the CSE meeting of what it would mean if he had to go to a public school. (Tr. 124) The statement in her evaluation about his possible turning to his old behaviors without reinforcement of what he has learned at the school was obtained from the _________________ report. She did not disagree, stating that he was at risk for that, and that he may have a tendency to get bored and engage in potentially risky behavior. (Tr. 124-127) She knew that the student had been in therapy but didn’t think it necessary to contact the therapist, as the therapy was based on the family divorce and she had been asked by the CSE to do the testing and report on it. (Tr. 133)

PARENT CASE

testified that he was licensed as both a and a . (Tr. 188) He has had a consulting relationship with _________________ for approximately three years. (Tr. 190) He is not an employee of _________________, but an independent contractor. (Tr. 214) As part of his responsibilities, he conducted the initial evaluation of __ in August 2009. He stated that __ impressed him as a significantly individual who had been suffering from for probably the preceding five years. The had become a fixed part of his personality and a chronic piece of the way he viewed himself. The manifestations of his included an irritable, angry, oppositional presentation; Dr. also cited a genetic vulnerability to substance abuse. He stated that at that point he saw in __ a individual who was recklessly risk-taking and breaking rules and laws, a individual, and a substance abusing individual. (Tr. 192-194, 204) __ was very appropriate for the program at _________________. Dr. explained that _________________ was a substance-free environment. He also cited __’s loss of trust in people and adults in his life, and said that _________________ is also a very safe, warm, consistent environment where relationships can be built and faith in other people restored. In the simplified environment, with simple and measurable goals, there are many opportunities presented for success, to rebuild his self-esteem and belief in himself and his potential. (Tr. 195- 196) The goals for __ included general goals to rebuild his self-esteem, to reach into a belief in his own potential, and to restore trusting relationships with people, all aimed at reducing his and getting him back to age appropriate goals and tasks. Other more specific issues for __ related to how his family had unfolded, and issues at the bottom of where his came from, feelings of alienation, isolation, and exclusion. (Tr. 196-197)

A formal treatment plan was not put into place. Dr. emphasized that the _________________ School is not a treatment facility, although there is ongoing written material on each student, called “profiling” or “table topics,” that is updated, but it is not a specific document. (Tr. 197) __ has received individual , group , and , and has also been involved in daily behavioral feedback via table topics. (Tr. 198) There are about 130 students in the school. (Tr. 211) Dr. has a caseload but __ was not on it, and he did not stay involved with __. Cases are reviewed by him, in his supervising capacity. He reported that __’s course has been fairly steady, without much incident. On the academic side, he has taken is work seriously, coming from a place where he made it a point to cut corners and cheat and moving to a more honest way of addressing his work. (Tr. 200-201) The “global” response was that __ had shown fairly steady improvement, from a distraught young man with and self-directed blame and poor self-esteem to sustained ability to work toward goals to a place where he acknowledges troubling emotions and knows what to do with them. His behavioral performance shows a real commitment to getting his work done, and he had developed leadership skills. There has been little in the way of negative behaviors. (Tr. 202-203)

When asked abut the summer of 2010, when special education services were first requested for __, Dr. stated that he didn’t examine him at that time. He stated that if he were to look globally at __ at the present time, he would say he was still not devoid of all the issues he first presented with at the school. He stated that change is a slow process, and sometimes people work well and then slide back and relapse when they return to an older environment, which is why the school always asks for an 18-month commitment. (Tr. 204-205, 244-245) Dr. testified that __ wasn’t prepared to leave _________________ in the summer of 2010, but qualified his opinion by repeating that he hadn’t examined him at the time and he was basing his opinion on what he knew about kids in general. (Tr. 206)

Dr. testified that __ functions on a day-to-day basis and has exceeded his potential in terms of his performance. His intellectual functioning is and his vulnerability is his h lowest and weakest area, and his achievement testing indicates the to percentile. Yet on a daily basis he outperforms what is expected because he is motivated. Without that support and falling back on not being able to talk about his sad or depressive feelings, he could see __ sliding down significantly in academics. (Tr. 209) __ has individual , although Dr. was not sure of his individual . __ has support from his sponsor, and connections with several adult members of the family unit where he resides. He has the opportunity and probably takes advantage of it to talk meaningfully with some trained adult. (Tr. 210) He explained that the school program is run with an __ model, every student assigned to a sponsor who works with them on issues relating to addiction. The s a mental health professional. (Tr. 241- 242) Dr. is the only at _________________, but there are 10 clinical social workers and mental health counselors. (Tr. 211)

He believed that __ was in the appropriate placement when he evaluated him, and also in the past summer when a decision had to be made about the type of educational placement that would be appropriate for him. (Tr. 255-256) He described __’s primary difficulties having to do with his unresolved relationship with his mother, and stated that it was going to be a lifelong issue, that __ remains very vulnerable in that area, and he still needs strategies to help him work through. (Tr. 207-208) Dr. stated that he would be frightened for __ to be placed back into the public school system at this point, knowing it to be a fairly open and free-wheeling place. (Tr. 208) __ is not as needy as when he arrived. Dr. saw __ recently, and said he would “shudder to think that there would be a precipitous move” with him. (Tr. 257) His main concern, was that it is an “extremely relapsable situation in an environment that he could be returned to, which could be supportive of a relapse.” He called it a big risk. (Tr. 256-257)

On cross examination, Dr. identified the information he had going into his evaluation of __, and testified that the description of __ cheating his way through high school, getting passing grades between and was solely information he received orally from __. He did not recall seeing any report cards from ____________. (Tr. 218-219) He also discussed the Million Adolescent Clinical Inventory (MACI), which he explained issues a computer-generated interpretive report based on the child’s input. (Tr. 222-226) He defined a t disorder as an adolescent form of antisocial personality disorder involving specific rule breaking in an oppositional fashion. He also agreed that he had stated __ had a disorder, and he did not know if __ was receiving any education for it. He knew __ was seeing a therapist but he hadn’t received any formal diagnosis from that therapist. (Tr. 230-232) He explained that the MACI helped to confirm the impressions he gleaned in his clinical interview of __. He conceded that nothing in the MACI report indicated a diagnosis of and that his diagnosis of disorder not otherwise specified was based on his interview with __. (Tr. 233-235) He agreed that when he evaluated __, the student had only been at the school four days, but argued that that was always the case and his evaluation corrected for adjustment issues. (Tr. 236-237) Dr. agreed that the recommendations in the evaluation were the sum total of the recommendations he made for “at this time.” (Tr. 237) He did not make any recommendations for additional cognitive or standardized testing or for consideration for special education services. (Tr. 238) He did a clinical note on __ a couple of weeks prior to his testimony. (Tr. 238) He has no done no further testing since August 2009 to change his diagnosis. (Tr. 239

Dr. stated that the past year had been pretty uneventful with __. (Tr. 246) He conceded that he had never come in contact with the school district, explaining that his experience with the public schools had been in a rural districts, and cited high percentage of students who are intoxicated during the day in , with identical patterns he has seen in his research, which leads to his conclusion about what is happening with kids in schools. (Tr. 250-253) He conceded that there are student who with alcohol or drug problems who can receive treatment and be successful in a public school or Catholic school setting, but testified that __ was not one of them. (Tr. 258)

testified that he was the Director of Academics at the _________________ School, a position he has held since December 2010. Prior to that he had been a chemistry teacher and chair of the math and science departments. He stated that _________________ had 117 students, a population he described as “average teens” at the school for the “therapeutic milieu and also the college preparatory nature of the school.” (Tr. 265, 302) He testified that __ was in his class for a little more than a semester, in the 2009-2010 school year, finishing in June 2010. As a dean, he had occasional contact with __, but no direct involvement, which he would have had had there been an issue with __’s academics. (Tr. 266- 267) described __ in the class as a student who had to work very hard to get the grades he got, at approximately the percentile of the class; he got a on the Regents exam, higher than average but not exceptional. Dr. characterized __’s behavior as mostly very good, describing him as a gregarious young man at times talking out of turn. (Tr. 268) Prior to his testimony, Dr. reviewed __’s records and talked to his English and government economics teachers. He was not aware of any disciplinary problem or disruptive behavior on the part of __ in this year or the past one. From conversations, he concluded that __’s demeanor was similar in his other classes as well. (Tr. 269)

Dr. discussed in detail the classes __ attended in the current school year, as of January 2011. __ was in a math class of approximately students, received an in the class, and has met the math requirements for high school. Journalism and English are two separate courses. The journalism class is a rigorous class, with weekly grammar and vocabulary quizzes; the teacher has a career in publishing, although no college degree. __’s English class, with o students, is taught be a teacher with a BA in English and publication of six young adult and children’s books. There is no specific textbook for either the journalism or the English class. The chairperson of the English department is a , who has been principal of a school. Government/economics is a class of approximately students, taught by a teacher with a Masters degree in communications and history. Home economics is not a class in the conventional sense; __ is evaluated on how he functions in the family unit of about students; he agreed that it could be called a “mandatory extracurricular activity.” __ did not take science. Living skills is a course directed toward living outside the _________________. Dr. stated that the senior living skills which __ was currently taking is more directed towards being able to function independently, including relationships with professionals, students outside, other peers, and includes some discussion about the . The class has about to students. It is specifically tailored for students that are going to be leaving, and is designed to prepare them for living back in their outside environment. __ also has taken physical education and Spanish. Dr. testified that the Spanish class was students, taught by a certified teacher with 32 years experience; __ got an and has satisfied the state foreign language requirement. (Tr. 271- 284; Ex. G)

Dr. testified that the academic program at _________________ is college preparatory but designed for students at risk. The most important component is the therapeutic milieu associated with the school’s program and the integrated and sponsorship the school provides. The academics are as normalized as possible for the population. (Tr. 285) The school has four family units, with 30 students in a unit and between 25 and 35 staff assigned as family leaders. In general there is more time spent on emotional issues than on academics, although Dr. had not worked closely with __ because he’s not in his unit. (Tr. 286-287) His involvement with __ was in the previous school year’s second semester as his chemistry teacher, in a class of 55 minutes four days a week. (Tr. 297) He agreed that he is most familiar with the student in his own family unit. (Tr. 301) When asked whether __ was easily distracted and lost focus in his class, he said “variably so,” and stated that he thought his focus improved in the time he was in Dr. s class. His disruptive behavior was minimal, most of his digressions talking to other students, although there were indications of impulsivity. (Tr. 287) Dr. stated that _________________ is probably as good an environment as he would be able to find for the nature of his issues, citing __’s drug and alcohol abuse problems and emotional issues, which he termed “pretty typical.” Dr. Janauer stated that the academic issues related to the emotional and drug abuse issues are pretty typical, mainstream for the school’s population. He stated that “we” does not feel __ is ready for a mainstream school without supports, citing many students in his position who end up having relapses when they leave if they are not completely ready to leave. (Tr. 291) It is anticipated that __ will graduate in June 2011. (Tr. 304)

On cross examination, Dr. stated that he was aware that __ had passed some Regents exams prior to coming to _________________, giving as example Integrated Algebra I and geometry, and agreeing that he had passed biology, global history, earth science. He didn’t know offhand what Regents he had passed while at _________________. (Tr. 304-305) When asked about cheating, he said that he had read about __ discussing his cheating, but __ had never cheated in his class. Dr. stated that he wondered whether __’s scores might have been due to that, because with the behavior that had been described he would have expected his academic to decline more than they did. (Tr. 308) He argued that not all __’s scores due to Regents exams, but agreed that it is very difficult, “close to impossible,” to cheat on a Regents exam. (Tr. 309)

Mr. _, __’s father, testified that __ first presented difficulties in the 8th grade. His problems before that stemmed from his mother’s actions, when she more or less “conned him” into moving in with his father, by saying she was going to move to but instead moving in with her boyfriend in _________. __ was in the 6th grade at the time. After __ moved in with Mr. _, he saw his mother “very very little.” (Tr. 311-312) He began seeing a therapist in 7th grade. He was going to parochial school when he was living with his mother and also when he moved in with his father; he had never attended a public school. (Tr. 313-314) In 8th grade, he got for being in a . At school, he would get detention, which started snowballing when he began high school in the 9th grade. (Tr. 314-315) He went to ____________ High School for 9th and 10th grade; he has been in the _________________ School for 11th and 12th grade. (Tr. 315) When __ was at ____________, Mr. _ started getting calls from his teachers; __ was getting detention, he wasn’t wearing his tie, he wouldn’t bring “this and that.” Mr. _ found a reefer of marijuana. __ got caught stealing lunch from the cafeteria and selling it to other students, At home, he tried to be a good kid, but he was a “con artist more or less.” (Tr. 316) Mr. _ explained his son’s cheating as originating in the fact that he used to discipline __ when he came home with a or on a test by not letting him play hockey, so __ started having girls do his homework. (Tr. 316-317) Mr. _ also stated that prior to being at _________________, __ did a “5th step” with him, which required him to be vigorously honest with his parent, and he told Mr. _, “Dad, I cheated all the time.” (Tr. 317)

Mr. _ explained what precipitated putting his son in _________________. After his he began coming home beat up and fighting, there was a lot of violence around him and his friends, and he was constantly drinking, and he found reefer. __ was sneaking out of the house and not coming home. As a single father, Mr. _ had people watching him but they couldn’t watch him 24/7. Right before he took him to _________________, __ ran away from home and stayed at a friend’s not coming home for six days, which “broke the camel’s back.” (Tr. 318-319)

Mr. _ heard about the _________________ School from friends and he had placed __ in the school for a year before he contacted the school district. He works at had he refinanced his house to pay for the school. He later found out he possibly could get some help and he discussed with school officials the possibility that they could help him pay for _________________. He was honest with the district as to why __ had been taken out of ____________ and sent to _________________. (Tr. 321-322, 324) He visits the school about once a month. He stated that the house has about 25 to 30 children, with staff members usually present, who are authority figures, __ has been clean. He spoke at a recent __ meeting, telling his experience, which Mr. _ described as a God-given gift; __ described his background, his drugs, and his cheating. When he was home, he asked to call his sponsor. He said the school has helped keep his son clean, and he had not been cheating in any academics while there. (Tr. 328-331) The school costs approximately $ a month, which he has paid. (Tr. 332) When asked about his son’s progress this year, he said it’s a slow process, two steps forward, one step back. He stated that today __ is doing “fabulous.” They just got word that he failed algebra so even though he passed his Regents he has to go back and take it in the class. He has grown socially and emotionally. (Tr. 332-333)

He said he was “most definitely” afraid to take his son out of _________________ and back to , as he knows quite a few young men that are no longer in the school district that have been arrested and been into rehab, and these are all __’s friends. When __ came home the previous semester he was calling his old friends which set him back. (Tr. 322-323) He testified that had the district offered him a school similar to the _________________, he would have considered it to get his son home or close to home. (Tr. 325) He stated that he “most definitely” thinks his son needs to be at _________________ for this school year, and he cited two young people he knew from who had been at the school and were no leading successful productive lives. (Tr. 327) He stated that if he placed __ in the local high school, “possibly we would have went to a funeral.” (Tr. 335)

On cross examination, Mr. _ testified that __ has never been prescribed any medication. He went to a for about five months in the 7th grade. (Tr. 335-337) He pulled __ out of ____________ because of fighting, marijuana, alcohol, and also cheating, shutting down, not studying and paying girls do his homework and stealing lunch money. Mr. _ found marijuana a couple of times. He did not send __ to any type of counseling while he was at ____________, explaining that he took it upon himself as a recovering alcoholic; he said that he had enough experience in that area that he knew how to address that. (Tr. 340) Mr. _ explained that meant to throw it down the toilet bowl, and then engage and talk to __ and get between the drug and him every which way. (Tr. 341) Mr. _ hadn’t realized it as first, but __ told him he had been doing it since the 7th grade. Mr. _ became aware in the 8th grade, and he been that he personally dealt with the drug and alcohol abuse until he pulled him our of school after 9th grade, although he stated that he wasn’t abusing it as much at the start. (Tr. 343) When __ ran away, he was sleeping at a friend’s house, and he brought him right from there up to _________________, which he knew as a school based on the . He drove up to _________________ for an interview, then drove down, got his transcripts and records, went to __’s work, grabbed him and threw him in the car and drove him straight up. (Tr. 345-347) After the initial enrollment, there was a six week blackout period enforced by the school during which he couldn’t talk to his son. (Tr. 347)

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

It must be stated at the outset that analysis requires separate review of the school district program and the program chosen by the parents. As far as the law is concerned, the two programs are not in competition and comparison is simply not relevant. Each program stands or falls on its own merits, depending on the underlying facts and in accordance with the standards applicable thereto.

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 07-008, Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

In this case, the district concluded that __ did not satisfy the criteria for special education. I concur with the district argument that the student’s condition, while presenting reason for valid concerns by his parent, does not warrant a finding of classification under law or regulation. As was noted in undisputed testimony, __ was placed at _________________ due to emotional issues related to abandonment by his mother. (Ex. B) Petitioner’s argument is that the district failed in not classifying __ as The starting point for analysis is the definition of in Regulations, of the Commissioner of Education as a “condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance:

I) an inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or

(v) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR 200.1(zz)(4) Although __ may have some characteristics or portions noted in the definition, he failed to meet that threshold criterion, of adversely affecting his educational performance.

Support for __’s eligibility under the regulatory standard was simply not sufficient. I note Mr. ’s comments at the CSE meeting, stating that __ had an by diagnosis.” (Tr. 46) Dr. s evaluation found alcohol abuses, cannabis abuse,

, and ; however, as Ms. noted, the diagnosis was more than a year previous, prior to the 2009-2010 school year, and he had not done any formal evaluation of __ after that. (Ex. 7) Moreover, as she noted, it was suggestive of social maladjustment rather than a category specifically excluded by regulation. Dr. s report did not indicate any major mental disorder, and it was undisputed that he didn’t mention a need for special education services. Nor did any the MACI results or the letter from Mr. . (Exs. 6, 7, 8) The evaluation of , done in August 15, 2010, specifically did not mention any diagnosis at all. (Ex. D)

There is a difference between a medical diagnosis and eligibility for special education under the IDEA. Even assuming that Dr. diagnosis continued to be an accurate appraisal of __, it nevertheless failed to meet the requirements for eligibility for special education services. As Ms. reported, he had an IQ of and testing showed him to be in the in reading and in math and written areas, with some lower scores such as in passage comprehension, but still not reflecting a Dr. ’s testimony confirmed intellectual functioning, with achievement testing at the percentile; according to Dr. , he outperforms what is expected because of his motivation. (Tr. 129-130) Dr. ’s recommendations in the intake evaluation, the sum total of the recommendations he made for __, were solely concerning issues, basically about talking about his family problems and also for a program for his alcohol and marijuana use. (Tr. 237; Ex. 7) None of the reports mentioned any effect on his academic performance. Nor did the letters offered by ____________ or the child’s therapist. (Exs. A, B) Application of a Child with a Disability, Appeal No, 02-040, May 2, 2003; Maus v. Wappingers Central School District, 688 F.Supp.2d 282 (SDNY 2010); A.J. v. Board of Education, 679 F.Supp.2d 299 (EDNY 2010).

According to Ms. when Mr. _ first asked for an evaluation that __, he reported that __ was doing “fabulously” at _________________. He stated the same thing during his testimony. At the time of the CSE meeting in June 24, 2010, __ was doing well in school. (Ex. 1) _________________ officials participating in the meeting said he was performing well academically, mentioning grades in the s and Ms. quoted them as saying said __ did not always put out his best effort but was academically capable. (Tr. 37-38. The June 7, 2010 letter submitted by Mr. the school’s Director of Admissions, while repeating the concern about his risk of returning to old behaviors, cited his satisfactory progress. (Ex. 6) The parent argued that __’s grades were dependent on wholesale cheating during his earlier attendance at ____________, the school __ had attended in 9th and 10th grade before his entry into _________________, but the only evidence of this was the statements made by the student himself to the parent and others at _________________. Although the parent presented a letter from stating that __ might have special education needs, the letter did not mention cheating. (Exs. 9, A) The parent complained that no one from the district had contacted ____________, but I note that there was no witness from ____________ called by the parent. Although the complaint stated the father’s statement that __ failed the majority of his classes without support, there was no evidence of that; and his report card indicated that he only failed one course at _____________, in Spanish, in 10th grade. (Ex. 9) At _________________, he had passing grades as well. (Ex. G) __ passed his Regents exams at both ____________ and _________________, exams on which cheating, as Dr. estified, is “close to impossible.” (Tr. 309) As Ms. reported, he had been on his way to receiving a high school diploma at ____________. Dr. also testified that __ was expected to graduate from _________________ in June; Mr. ’s letter confirmed he was on track academically for graduation. (Tr. 53-54, 304; Exs. 6, 9)

The parent witnesses were united in their concern that __ might relapse, and they emphasized their fear of regression based on the student’s entry into the public school system and rejoining his friends in his home town. Dr. expressed concern that without support he could see __ sliding down significantly in academics; he persisted in talked about the possibility of relapse when a person returned to an older environment. (Tr. 202-205, 209) His opinion about __’s readiness to leave _________________ in the summer of 2010 was based on his knowledge of kids in general; similarly his opinion of __’s going to a public school was based on reference other students and other schools, not specific to either __ or to any school in the district school. (Tr. 206, 208) It was undisputed that __ was “not as needy” as when he arrived, at _________________, but Dr. voiced his main concern, that it is an “extremely relapsable situation in an environment that he could be returned to, which could be supportive of a relapse.” He called it a big risk. (Tr. 256-257) He conceded that there are student who with alcohol or drug problems who can receive treatment and be successful in a public school, or Catholic school setting, but testified that __ was not one of them; he did not give reasons for that assessment. (Tr. 258) Although Dr. expressed fear about __ returning to the public school system, in fact __ had never been in the public school system, and the public schools could not be blamed for giving him a bad environment in the first place. As he had never been in a public school setting, his “return” to a public high school in was not just speculative, it was illusory.

Moreover, the student had never been in any of the district’s public schools, including the high school, and concerns about how he would fare there, while understandable, were nevertheless pure speculation on the part of all the witnesses. Mr. _ was more specific and forthright about the concerns for __. He was “most definitely” afraid to take his son out of _________________ and back to citing __’s friends who were no longer in the school district that have been arrested and been into rehab. According to Mr. _, when __ came home the previous semester he had been calling his old friends which set him back. (Tr. 322-323)

While the concerns stated by the _________________ school officials and emphasized by __’s father were understandable, and the father’s actions commendable in acting to protect his son, it still does not amount to special education eligibility. While his fears may be justified, fear of friends is not enough to justify the school district assuming the responsibility.

I discount the parent’s argument that an FBA was required or that the CSE was not properly constituted. I agree that Ms. ’s testing of __ did not constitute an observation as envisioned by law and regulations. I note that there was no written record of any observation, and none in an academic setting, an omission potentially significant in assessing a child. However, I accept the district’s argument that the observation was not raised in the due process complaint. Regulations prohibit the raising of issues at the impartial due process hearing that were not raised in the initial hearing request (unless the other party agrees otherwise). 8 NYCRR 200.5(j)(1)(ii). I also concur with the district’s argument that the absence of a classroom observation in this case did not rise to the level of a procedural violation that affected the student’s right to a FAPE or the parent’s right to participate, and note the observations of the students’ teachers at the CSE. Application of the XXX Department of Education, Appeal No. 10- 042.

For all the foregoing, I find that the district did not fail to provide a FAPE for __.

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of the Burlington, Petitioner bears the burden of proving the appropriateness of the services he seeks for __. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that _________________ offered an educational program designed to meet __’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

As I have found that __ did not have special education needs, a ruling on this prong is moot. I include my findings here for possible appeal however that the school, while an accredited school, was not appropriate for __’s special education needs.

Even were I to find that the district had failed to appropriately classify him, there was no evidence of precisely what those special education needs might be. Specifically, petitioner failed to identify anything that merited special attention during the 2010-2011 school year. While _________________ may have been the best place for __, that does not qualify it as a school to meet his special educational needs. The school’s __-modeled program, while commendable, is not a special education setting. As Dr. stressed in his testimony, the most important component is the “therapeutic milieu” associated with the school’s program and the integrated and sponsorship the school provides. Mr. ’s letter describes a facility of “rigorous academics, daily and character education.” (Ex. 6) As was noted, the academics are as normalized as possible for a generally at-risk population, but it is not a therapeutic facility. There was no formal therapeutic plan for __. Nor were any of his teachers certified in special education. While the absence of certification is not necessarily determinative of the appropriateness of a private school, it must be noted that the _________________ program described by witnesses in detail failed to address any specific special education issues.

Both the general and the specific goals for __ at _________________ noted by Dr. were exclusively related to the student’s self-esteem and family issues. Goals for __ included general goals to rebuild his self-esteem, to reach into a belief in his own potential, to restore trusting relationships with people, dealing with depression, alienation, isolation, and exclusion. There was no reference to any academic goals nor to emotional issues as they underlay academic performance. (Tr. 196-197) To the extent that he had needs related to his emotional issues, there was no testimony by any professional concerning specific progress related to those issues. Dr.

knowledge of __ was limited to his chemistry class in a single semester a year before, and Dr. had not had any meaningful contact with __ after his intake nearly a year before that. Neither was able to identify a with whom the child met regularly. Nor was there any written record of any therapeutic services presented.

I note also that despite testimony about how much the school had done for __, just by virtue of his attendance, there was little evidence of any progress anticipated for or occurring in the 2010-2011 school year. All the progress in his general behavior and attitude was limited to his going to the school in the first place, in the 2009-2010 school year. It was undisputed that was not as needy and better able to cope than when he first arrived at the school. When asked to specify progress related to the current 2010-2011 school year, Dr. persisted in giving what he termed a “global response,” which talked about __’s progress over the present and the past school year since he arrived at _________________. As stated above, his “global” response focused on the possibility of relapse when a person returned to an older environment. (Tr. 202- 205, 257)

Although the officials from _________________ thought he should stay in the _________________, that still doesn’t make __ eligible for special education services nor does it mean that _________________ has a program designed to meet any special educational needs. (Tr. 325

In this regard, I find that Petitioner has failed to sustain his burden of demonstrating the appropriateness of _________________ for __.

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

Once again, a ruling is not necessary, given my finding under Prong 1 (and additionally under Prong 2). However, I make a finding for purposes of any possible appeal.

The district argued that the parent’s action in seeking reimbursement and saying so showed he had no intent to allow __ to attend school in . I credit the testimony of Mr. _ that had the district offered __ a school similar to the _________________, he would have considered it, and would not penalize him for his ingenuous remarks.

I find that the parent cooperated with the district and analysis reason under this prong of Burlington/Carter would not require a ruling against him.

DECISION AND ORDER

Based upon the foregoing, Petitioners’ application for reimbursement for tuition for __ at the _________________ School for the 2010-2011 school year is denied.

IT IS SO ORDERED.

_____________________________

Impartial Hearing Officer

Date: May 9, 2011

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

APPENDIX A

WITNESSES

District

, Coordinator of Special Education, High Schools, School District , School Psychologist, School District

Parent

Consulting _________________ School

Director of Academics, _________________ School Mr. _, __’s father

APPENDIX B

EVIDENCE

District Exhibits 1 Special education referral, 1 page 2 Consent for referral and evaluation, 1 page 3 CSE minutes, 6/24/10, 2 pages 4 report, 6/23/10, 8 pages 5 Social history, 6/18/10, 8 pages 6 Letter, 6/7/10, 11 pages 7 _________________ initial evaluation, 8/21/09, 5 pages 8 MACI Adolescent Clinical Inventory Report, 9/15/09, 8 pages 9 Grade report, ____________, 1 page

Parent Exhibits A Letter, ____________, 6/18/10, 1 page B Letter, 6/10/10, 1 page C Letter, 8/23/10, 3 pages D Letter, 8/15/10, 2 pages E _________________ Course Synopsis, 12/10, 2 pages F Statement, _________________, 12/31/10, 1 page G Grade report, _________________, Fall 2010, 2 pages IHO Exhibits I Impartial Hearing Request, , 11/5/10, 8 pages II Answer to Complaint Letter, , 11/18/10, 2 pages III Decisions on Extension of Deadline for Decision, 1/6/11 - 4/6/11, 4 pages

(entered into record post hearing)