Impartial Hearing Decision

THE STATE EDUCATION DEPARTMENT

THE UNIVERSITY OF THE STATE OF NEW YORK

x In the Matter of the Due Process Complaint Notice of XXXX and XXXX, individually and on behalf of their child, XXX .,

Petitioners,

-against-

XXXXX SCHOOL DISTRICT,

Respondent. x

Second Corrected Findings of Fact and Decision XXXXX and XXXXX W. v. XXXXX School District

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 20, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 1, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 7, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

XXXXX XXXXX, Assistant Director for Pupil Personnel Services — District

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 15, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

XXXXX XXXXX, Assistant Director for Pupil Personnel Services — District

XXXXX XXXXX, School Psychologist — District

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 16, 2012

XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX XXXXX XXXXX, XXXXX. — Student

XXXXX XXXXX XXXXX, Psychologist — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2012

M XXXXX XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

XXXXX XXXXX, School Counselor — District

XXXXX XXXXX, School Counselor — District

JANE XXXXX, Substitute School Nurse — District

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 8, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

D XXXXX XXXXX XXXXX, Psychologist — Student

D XXXXX XXXXX, Pediatrician — Student

XXXXX XXXXX, English Teacher and School Counselor — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 20, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX ALD XXXXX, English Teacher and School Counselor — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 21, 2012

M XXXXX XXXXX, Petitioner — Student

MS. XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

XXXXX XXXXX, Director of Pupil Personnel Services — District

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 2, 2012

MS. XXXXX, Petitioner — Student

XXXXX, ESQ., School District Attorney — District

XXXXX and XXXXX W. v. XXXXX — District

Introduction

By letter dated November 18, 2011, the parents of the student requested an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act, (“IDEIA”) 20 U.S.C. Section 1415. IHO Ex. I. The parents alleged that the XXXXX School district (“the District”) denied their son a free and appropriate public education (”FAPE”) for the 2010-2011 and 2011-2012 school years. The parents also alleged that the District violated the student’s rights of confidentiality in violation of 20 U.S.C. Sec. 1412(a)(8), 1417(c), and 34 C.F. XXXXX Sec. 300.623. As relief, the parents requested reimbursement for the student's tuition at the XXXXX School, XXXXX , New York, for the 2011-2012 school year, compensatory counseling services for the 2010-2011 school year, and any further relief the impartial hearing officer finds just and necessary. The parents filed an Amended Due Process Complaint on January 25, 2012. IHO Ex. II. In addition to the IDEIA claims set forth in their original complaint, the parents alleged that the District violated Section 504 of the Rehabilitation Act of 1973 (”Section 504”) by failing to provide the student with counseling and adequate home instruction pursuant to his Section 504 plan, for the 2010-2011 school yea XXXXX As relief, the parents maintained their request for tuition reimbursement and also requested related XXXXX fees and costs, and compensatory educational and counseling services for the 2010-2011 school yea XXXXX The student's father, XXXXX ., an attorney, represented the parents. XXXXX , Esq., of XXXXX represented the District. Lists of the individuals who appeared and the documents that were entered into the record are included in this decision.

Procedural History

I was appointed to hear the matter on November 21, 2011. The District responded to the parents' initial complaint by letter dated November 28, 2011. IHO Ex. II. The thirty day resolution period ran until December 18, 2011, without a session being scheduled. A pre-hearing conference was held on December 22, 2011, and continued on January 20, 2012. IHO Ex. III; T XXXXX 1-47. At the parents' request, the parties scheduled a resolution session for January 6, 2012, and no resolution was reached. T XXXXX 59-60.

On January 6, 2012, the parents filed a motion requesting the impartial hearing officer to enforce certain confidentiality provisions of the IDEIA based on alleged violations of the District. IHO Ex. VI. On January 20, 2012, the District filed a Memorandum of Law in opposition to the parents' request. IHO Ex. VII. The parents submitted a Letter Brief in reply to the District's Memorandum of Law, dated January 25, 2012. IHO Ex. VIII. I rendered a Decision and Interim Order on the Parents' Request for Enforcement of IDEIA Confidentiality Provisions on January 30, 2012. IHO Ex. IX, T XXXXX 6062.

As noted above, the parents filed an Amended Due Process Complaint on January 25, 2012, which was accepted by the District on January 25, 2012. By letter dated January 27, 2012, the District responded to the parents' Amended Due Process Complaint. IHO Ex. IV. On January 31, 2012, the parties waived the thirty day resolution period. IHO Ex. X; T XXXXX 60. The hearing was held on February 1, February 7, February 15, February 16, March 7, March 8, March 20, March 21 and April 2, 2012. Extensions of the time lines

Extensions were granted as follows: On March 12, 2012, the parents requested an extension of the March 16, 2012 compliance date due to the unavailability of their witnesses. An extension was granted on March 16, 2012, to April 15, 2012. IHO Ex. XIII. On April 2, 2012, the District requested and I granted an extension of the compliance date due to the District’s request to submit a post-hearing closing statement and legal brief. The compliance date was extended to May 16, 2012. IHO Ex. XXVI-2; T XXXXX 2065-2068. On May 11, 2012, the parties jointly requested an extension of the compliance date due to the District's need for additional time to complete the post-hearing memorandum of law and the parents' requests for changes to the transcripts. An extension was granted on May 14, 2012, to May 30, 2012. IHO Ex. XXVI-1. The record closed on May 16, 2012.

Background

The student is a fifteen year old boy who currently is classified by the District as a Student with a Disability, specifically, other health impairment (“OHI”), due to a “ XXXXX disorder with associated features of both XXXXX. These conditions have severely limited his participation in social activities and school.” Joint Ex. 53-5. Currently, the student is in the ninth grade at the XXXXX School (“

XXXXX ”). 1

The student attended the kindergarten through the fifth grade in the District's XXXXX , from which he graduated with high grades and positive behavioral reports. T XXXXX 1632; Parent Ex. XXXXX The student transitioned to the XXXXX Middle School for sixth through eighth grades. T XXXXX 1635.

2008-2009/ Sixth Grade

During the student's sixth grade year, 2008-2009, he was absent approximately 26 entire school days and missed instruction for portions of additional days due to abdominal pain. Joint Ex. 65; T XXXXX 1188, 1191-1193, 1637. After a number of consultations which did not result in identifying the cause of the pain, the gastroenterologist consulted by the parents recommended an XXXX to relieve the symptoms. T XXXXX 1638. The student had an appendectomy in May 2009 and the symptoms abated. Joint Ex. 4; T XXXXX 1639. A neurologist subsequently identified the student's abdominal pains as abdominal XXXXXs. See T XXXXX 889-890. The student finished his sixth grade year as mostly an A student. Joint Ex. 68.

2009-2010/ Seventh Grade

In the fall of the student's seventh grade school year, 2009-2010, the student began to experience XXXXXs. At approximately the end of the second quarter the parents met with the student's core teachers and guidance counselor and discussed organizational issues as well as the student's progress. The teachers agreed to informally accommodate the student by allowing him extended time for assignments and extra time to make up work. T XXXXX 1196, 1641; Joint Ex. 1. By the third quarter the student had missed “a cluster of days” which made it difficult to complete his third quarter grades on time. T XXXXX 1199-1200. An Instructional Support Team (“IST”) meeting took place

1 XXXXX is a private general education school, and as such has not been approved by the Commissioner of Education as a school with which district may contract to instruct students with disabilities. (see 8 NYCRR 200.1[d], 200.7). in the spring of 2010. The team discussed allowing the student to receive incompletes for some of his classes “so that he could have additional time to make up some tests and quizzes he needed to do in order to get his third quarter grades.” T XXXXX 1199-1200. The team devised a plan to give the student a two-week period during which he would have the opportunity to make up that work and receive the grade that he earned. T XXXXX 1200.

By e-mail dated April 23, 2010, the parent asked Ms. XXXXX to arrange tutoring for the student even though he had not missed ten consecutive school days as generally required by school policy. Assistant Superintendent XXXXX approved home tutoring for the student, as is permitted by the policy. T XXXXX 1201-1202.

By e-mail dated April 23, 2010, the parent sent XXXXX XXXXX and XXXXX XXXXX a request for a Section 504 evaluation for the student. Joint Ex. 1. The parent stated that the student had been diagnosed with XXXXX Disorder and had been experiencing “debilitating XXXXXs throughout the year”, almost daily since September XXXXX The parent noted that the teachers had been “accommodating him informally by allowing extended time for assignments and extra time to make up work, “but at this point, due to the duration and the effect on this [sic] learning, [the student] requires more formal intervention and possible services.” Joint Ex. 1. The parent stated: “This physical/mental impairment is substantially limiting his major life activities of learning, thinking and concentrating.” Id. The parent asked that the process be expedited since it was so late in the school yea XXXXX

By letter dated April 26, 2010, XXXXX XXXXX , of XXXXXX of XXXXX , wrote subsequent to an examination of the student on that same date:

“My impression is he has a mixed XXXXX disorder with a combination of muscle contraction XXXXXs with XXXXX discomfort and XXXXX XXXXXs....I strongly recommend a trial of XXXXX , which can treat mixed XXXXX disorder, muscle contraction XXXXXs, TMJ, as well as XXXXXs.”

Joint Ex. 6-2.

The parent signed a Section 504 Consent for Evaluation form on May 4, 2010. Joint Ex. 2. By notice dated May 18, 2010, the district notified the parents that the Section 504 Committee was scheduled to meet to review the student's educational services on June 14, 2010. Joint Ex. 3.

A XXXXX School District 504 Referral Form signed by XXXXX , XXXXX Middle School Principal on May 18, 2010, indicates that the student was referred by the parent and that there were communications with the parents at a team meeting on March 4, 2010, and a telephone call on April 23, 2010. Dist. Ex. 1. The classroom accommodations and modifications currently used which are circled are copy of class notes and extensions of deadlines with the language added: “only to accommodate frequent absences”. District Ex. 1-4. The student's areas of strength are described as follows: “[The student] is a very intelligent young man and when ill his parents have been very communicative with staff to enable him to catch up on missed work.” Id. The described area of weakness was: “Chronic health issues have led to frequent absences. [The student's] organization while improving is an area of difficulty.” Id. The student's medications are noted as XXXXX and medical conditions are “ XXXX XXXXXs”. Dist. Ex. 1-6. The section on social emotional functioning indicates that the student's relationships with peers and adults are “fair”. His “behavioral adjustment” is “fair” and the supervision the student requires is “minimal”. Id. The form indicates that the student needs improvement in the area of organizational skills and that his study skills are fair XXXXX Id.

On or about May 18 and May 25, 2010, XXXXX XXXXX XXXXX XXXXX , a Certified School Psychologist, conducted a psycho-educational evaluation of the student and wrote a report of the results. Joint Ex. 4. XXXXX XXXXX XXXXX noted that the reason for the student's referral to the Section 504 Committee was “debilitating XXXXXs”. The student's medical history included an appendectomy for abdominal pain, XXXXXs began in fourth grade and current impressions include “a history of XXX and a mixed XXXXX disorder”. Joint Ex. 4-1.

D XXXXX XXXXX administered the Woodcock -Johnson III (“WJ-III”), Tests of Cognitive Abilities and Tests of Academic Achievements, and Behavior Assessment System for Children-second edition (“BASC-2”), as well as relied upon teacher interviews and a review of records. Joint Ex. 4-1; T XXXXX 703-704.

On the WJ-III Tests of Cognitive Abilities, the student's General Intellectual Ability standard score of 121, with a percentile rank of 92, placed him above the average range compared to same age peers. Joint Ex. 4-2, 4-3. The student demonstrated “above average intellectual potential overall with strong language and conceptual thinking skills. Weaknesses were noted in fine-motor skills.” Joint Ex. 4-5.

On the WJ-III Tests of Achievement, the student's scores ranged from low average to above average. Joint Ex. 4-3. On the Broad Reading sub-test, the student obtained a standard score (”SS”) of 109, placing him in the 72nd percentile or average range for his age. The student received average scores for reading fluency (SS-103/58%) and decoding (SS – 105/62%). The student's reading comprehension on longer passages was within the average range (SS113/81%) which led the evaluator to conclude that grade level reading material “should be manageable” for the student. Joint Ex. 4-3; 4-4; 4-5. The student's Broad Math SS of 113 or 80% placed him in the high average range for his age. The student demonstrated above average calculation skills “during paper and pencil tasks”, but “gave a significantly weaker performance when processing simple math under time pressure.” Id. The student's scores were above average (SS- 113/ 81%) for math word problems. Id. The evaluator noted that “time pressure can result in awkward processing” for the student. Id. The student's spelling skills were in the average range (SS- 109/72%). The student's Broad Written Language SS of 125 (95%) placed him in the above average range for his age. Joint Ex. 4-4.

The BASC-2 was completed by the student and two of his teachers.

“On the teachers' forms nearly every area had scores in the average range. Only one score from one teacher produced a clinically significant score; this was in the area of

XXXXX. This seems to be directly related to moments where [the student] complains of not feeling well and asks to see the nurse. On [the student's] form all scores were in the average range with the exception of two At-Risk scores. The first of these elevated scores was in Relations to Parents and is reflective of difficult communication patterns that often exist between parents and young teenagers. The second elevated score was in

Attitude Towards School and was marked by responses related to feeling bored with school and disliking school.”

Joint Ex. 4-4; Dist. Ex. 5a, 5b, 5c; T XXXXX 712-719. In his summary, the psychologist noted that the student was diagnosed with a “mixed XXXXX disorder” in a recent neurological evaluation. Id. at 5. “Data gained from multiple source rating scales and projective testing suggests a high level of physical complaints during academics. There are also indications of a negative attitude about school and mild oppositional behavior at home. All other areas of socialemotional functioning are reported to be average for his age.” Joint Ex. 4-5.

D XXXXX XXXXX recommended that the 504 Committee consider all relevant data and reports and obtain teachers' input about daily functioning and behavior to determine the impact of the student's XXXXXs. XXXXX XXXXX XXXXX also recommended that the “[s]tudent's attitude towards school and oppositional behavior should be monitored for possible intervention.” Joint Ex. 4-5.

An Initial Social History dated May 10, 2010, was completed with the student's mother, and noted that the student “began having some XXXXXs in school in fourth grade. He saw a neurologist then, XXXXX XXXXX , who prescribed Tylenol as needed in school and the XXXXXs abated.” Joint Ex. 5-1. In fifth grade, the student began having XXXXX. The pains increased in the winter of sixth grade and the student's XXXXX, XXXXX XXXXX , recommended an XXXXX. The student had his XXXXX in May 2009 and “the pains basically ended.” Joint Ex. 5-1.

The parent wrote:

“We are concerned about [the student's] XXXXXs and the impact on his school work and development. The XXXXXs have been debilitating of late and have caused him to miss a substantial number of school days. Also, when ill, he is unable to complete homework or get organized. I am worried about the impact on his study, social and organizational skills, and think he may need a little additional support, both to catch up from the impact of what has occurred and to prepare if this problem continues in the future.”

Joint Ex. 5-3. By marking an “X” near the word “No”, the parent indicated that she did not want anyone to call her to further discuss the form or the CSE process. Id.

A XXXXX Middle School document generated on May 19, 2010 indicates that on the New York State English Language Assessment (”ELA”) the student scored a 3.0 in 5th grade, and a 4.0 in 6th grade. On the New York State Math Assessment, the student scored a 4.0 in 5th grade and a 4.0 in 6th grade. Joint Ex. 7.

A “Student Period Attendance Detail” generated on June 14, 2010, indicates that for the student's seventh grade year, he had been absent approximately 30 full days and missed 81 class periods of instruction up until that date. Joint Ex. 8-3.

On June 14, 2010, the 504 Committee met. According to the attendance sheet, the participants included: XXXXX as Chair; XXXXX , seventh grade English teacher; XXXXX XXXXX , school nurse; XXXXX XXXXX , school psychologist; XXXXX XXXXX , school counselor; and the student's mother XXXXX Joint Ex. 10. The 504 plan itself lists XXXXX XXXXX, Assistant Director of Pupil Personnel Services as Chair XXXXX Joint Ex. 11-2.^[2] The committee determined that the student was eligible for a Section 504 accommodation plan. The available sources of information included: Parent Report and Observations; physical examination; report card; teacher reports; psychoeducational evaluation dated 5/25/10 and physician's letter dated 01/21/10. Joint Ex. 11-2. The Committee found that the student had a limited major life activity:

“The student has a physical impairment in the following area: Neurological.

This impairment substantially limits the following major life activity: Learning; which adversely affects appropriate participation in academic activities.”

The comments section included the student's current diagnosis of mixed XXXXX disorder XXXXX The parent's concern that the student's XXXXXs were causing excessive absences was noted. The psycho-educational report was reviewed. The teacher reported that the student “has difficulties with organization, especially on extended assignments.” Ex. 11-2. The student's excessive absences were noted to impact on his ability to complete assignments. Joint Ex. 11-1. The student was given the following accommodations throughout the school day: extended time (1.5); extended time to complete assignments-due to absences; nursing services as needed; access to school nurse as needed; access to class notes; and access to home tutoring “when appropriate”. Joint Ex. 11-2.

By letter dated June 28, 2010, the district sent the parent the Section 504 Recommendation for Services and Consent.

The student completed the 2009-2010 school year with 28.5 absences. He earned grades of As and Bs. Joint Ex. 69.

By e-mail and attachment dated July 29, 2010, the parent returned the signed consent and explained the delay due to her wanting to get approval for the services from the student. Joint Ex. 13 and 14.

2010-2011/Eighth Grade

In eighth grade, the student missed his first days of school over September 27 through September 29, 2010, due to a XXXXX. Joint Ex. 67; T XXXXX 1657. In October, the student was next absent for three consecutive days due to XXXXXs on October 20, 21, and 22, and on October 29, 2010. Joint Ex. 67. In November, the student missed 10 complete days. Joint Ex. 67. In December, the student missed 10 full days as well. Joint Ex. 67. The student also missed half or portions of other school days during that time period. Joint Ex. 67, 70. At the time, pursuant to the treatment plan of the neurologist, XXXXX XXXXX , he was taking XXXXX as a preventive measure and Advil or Aleve as an abortive measure to get rid of the XXXXXs. T XXXXX 1658.

From the end of September through December, pursuant to the student's 504 plan, the XXXXX guidance counselor had “numerous” brief conversations with the student in order to monitor him for attitude towards school and oppositional behavior XXXXX In her view, no specific concerns were raised. She also was in communication with the parents. At the parent's request, the guidance counselor arranged for home instruction pursuant to the student's 504 plan, at the end of September, at the end of October and in November XXXXX T XXXXX 1204, 1207, 1209, 1659; Dist Ex. 34. The guidance counselor facilitated having the teachers send homework home for the student and monitored whether the student was turning in the homework and his progress. T XXXXX 1236, 1240, 1257-1258. The teachers e-mailed homework to the student, but often the student could not do any work. The student could listen, but he could not read, write, or do numeric operations. T XXXXX 1660-1662, 1902-1903. The student's mother was dissatisfied with the tutor sent by the District, XXXXX, because she felt that he did not engage the student or actually provide instruction, but gave him work to do and observed the student. T XXXXX 1666-1667.

On November 22, 2010, the student had a neurological examination at XXXXX , due to his XXXXXs. The report confirmed a diagnosis of mixed XXXXX XXXXX Joint Ex. 21. The report noted “may be stress and exercise precipitants”. Joint 21-3. The attending doctor increased the student's prescription and discussed biofeedback with the student's father XXXXX Joint Ex. 21-3.

XXXXX replaced XXXXX XXXXX as the guidance counselor on December 1, 2010. Prior to Ms. XXXXX assuming the position, Ms. XXXXX informed her about the student and reviewed his 504 plan with Ms. XXXXX. T XXXXX 1285-1286; 1293-1294, 1326-1327. The student's mother never asked Ms. XXXXX to find a different tutor for the student. T XXXXX 1903.

In early December, the parent called XXXXX XXXXX to note her concern about the student, and among a number of issues discussed, asked XXXXX XXXXX to speak to the student. T XXXXX 1677-1678, 1963. By e-mail dated December 6, 2010, the student's mother wrote to XXXXX XXXXX XXXXX to inform him that that the student did not think that it was necessary to speak with XXXXX XXXXX and seemed “a bit resistant” to talking with him XXXXX She added: “Actually, when he does not have his XXXXXs, he seems happy and well-adjusted, so I XXXXX 't think the talk is necessary.” Dist. Ex. 6. The parent asked that if XXXXX XXXXX XXXXX had not yet spoken to the student, “it's probably best to hold off, given that [the student] may feel singled out and really just wants to maintain normalcy.” Dist. Ex. 6.

By e-mail dated December 9, 2010, Ms. XXXXX wrote to the student's mother to let her know that she had met with the student to talk to him about his French grade. She noted missing assignments from the first and second quarters, explained the student's potential grades if he completes the assignments or does not, and gave the student a copy of the missing assignments. Ms. XXXXX suggested to the student a time when he might work with the French teacher to “catch up with the missing assignments.” Dist. Ex. 50. The student's mother responded in an email dated December 9, 2012, noted that the student had not been in school for a full week since early October, was absent “almost all of November”, and will make up the missed work. She also added that the priority was to keep the student XXXXX-free so that he can attend school. Consequently, the parent was not putting pressure on the student to make up his homework. Dist. Ex. 50.

By e-mail dated December 13, 2010, the parent asked for a 504 meeting to review the student's progra XXXXX XXXXX The parent expressed concern about the student's absenteeism and XXXXXs. T XXXXX 471. “He is continuing to suffer from his XXXXXs., and is having difficulty both attending school and keeping up with his work. He has missed 21 days this year, already. We are stuck in a cycle ( XXXX leads to missed school, which leads to missed work and falling behind which leads to more stress and more XXXXXs). He also has two incompletes from last quarter XXXXX I would like to discuss whether we may add more accommodations or services, or whether the team has any other ideas.” Dist. Ex. 7-2. The parent offered to provide more recent medical information. That same day, Ms. XXXXX emailed the parent and offered to schedule a meeting for December 27, 2011, or for the week following the holiday break. Dist. Ex. 7-2. The parent responded by e-mail and chose to meet after the holiday break. Dist. Ex. 7-2.

By notice dated December 13, 2010, the district sent the parent a notice of a Section 504 Committee meeting scheduled for January 5, 2011. Joint Ex. 16.

In an e-mail dated December 13, 2010, XXXXX wrote to XXXXX XXXXX about a call from the student's mother who voiced concern that her son was missing so much school that he was getting overwhelmed which is making him miss more school. The student's mother also told Ms. XXXXX that she had spoken to XXXXX XXXXX about counseling. In response to the guidance counselor's inquiry about whether XXXXX XXXXX was providing the student with counseling, XXXXX XXXXX wrote that the previous week, the student's mother had asked him to speak to the student because of some recent absences, but when the student returned to the school, the mother called to say it was not necessary for XXXXX XXXXX to see hi XXXXX Joint Ex. 15; Parent W; T XXXXX 730, 765-

766. XXXXX XXXXX XXXXX noted that he does not regularly see students for counseling and had no caseload. He further wrote; “I offered to see him briefly with the intentions of steering the family towards private therapy.” Joint Ex. 15. XXXXX XXXXX wrote that he did not know what the parent had in mind, but that the parent knows that she can call him to discuss her son at any time. Joint Ex. 15.

On December 13, 2010, the parent e-mailed XXXXX , the guidance counselor, to inform her of the upcoming 504 review and to ask what other class the student could take if he were to drop French. Joint Ex. 17. In a response e-mail dated December 14, 2010, Ms. XXXXX informed the parent that the decision as to whether the student could drop French would be made at the program review and that in its place he could go into “content support”. Id.^[3] The parent responded in an e-mail dated December 14, 2010, stating that they could discuss the alternative to French in January. The parent also expressed concern about helping the student “get through December”. The parent stated that the student “appears to be in a crisis as to school” and suggested some interventions. Joint Ex. 17 The parent requested that class notes be sent home for Science, French, Social Studies and English. The parent stated that she “will try to schedule home instruction but it is difficult to coordinate because when he is home, [the student] usually feels too poorly to access it.” Joint Ex. 17-1. The parent asked for a team meeting before the school holiday break to “prioritize assignments to do during the break and salvage this semester, so [the student] can feel okay about being in school”. Joint Ex. 17. The parent stated that she would call XXXXX XXXXX XXXXX as to any suggestions he may have to alleviate apparent stress when in school, and noted that the student “has not been willing to see hi XXXXX ...” Joint Ex. 17.

By e-mail dated December 15, 2010, the student's mother wrote to XXXXX XXXXX , the eighth grade French teacher, asking her to provide an extra copy of a workbook that had “disappeared” so that the tutor coming later in the day could bring it. The student's mother also noted that the student was unable to make any progress on the missing French assignments since his meeting with Ms. XXXXX, and “it was apparent that the frustration led to more XXXXXs.” Dist. Ex. 49-2.

By e-mail dated December 15, 2010, the student's mother notified Ms. XXXXX of her request to Ms. XXXXX and specified missing assignment from the first quarter French class, requesting those as well. The student's mother confirmed that she had received copies of the social studies, math and English that were mailed. Dist. Ex. 49.

The school team meeting took place during the week before the December holiday break. T XXXXX 1296-1299, 1680-1681. The team and parents reviewed the student's missing assignments, determined what work needed to be made up, modified the assignments and set priorities. T XXXXX 1296-1298.

In preparation for the January 5, 2011, 504 meeting, the student's teachers completed reports and submitted them to the Office of Pupil Personnel where they were stamped received on January 3, 2011. Joint Ex. 18. The English teacher noted that the student's greatest area of success was “literary analysis” and his greatest difficulty was attendance. Joint Ex. 18-1.The teachers noted that the student had average to above average performance in all areas except attendance, turning in assignments timely, and attitude toward school, which were below average. Joint Ex. 18; T XXXXX 611. The English teacher noted that the student's assignments were modified. Joint Ex. 18-1. The Integrated Algebra teacher noted that the student's area of greatest success was “[s]elf directed learning” and his area of greatest difficulty was “[m]aking up missed work”. Joint Ex. 18-2. The science teacher noted the student's greatest areas of success as “[c]ontent knowledge, abstract thinking, test-taking skills, independent learning” and his area of greatest difficulty as “attendance, catching up w/missed assignments”. Joint Ex. 18-4. The science teacher noted that the student was provided with copies of notes and power points, alternate assignments (working out of a Regents review book), and modified homework assignment expectations. Id. The French teacher noted that the student's area of greatest success was a good understanding of concepts and that his greatest area of difficulty was his “completion of homework, especially when absent.” Joint Ex. 18-5. The French teacher also wrote a separate letter recommending a French tutor for the student since the current home tutor did not cover French. She wrote that the student needs direct instruction and practice, noting that he missed so much of the second quarter that he cannot be assessed. She explained that the class is moving at too fast a pace for the student to keep up and observed that it would be difficult for him to pass French or get a good grade if his rate of absenteeism continues. Alternatively, she suggested that the student drop French so as to ease his stress. Joint Ex. 18-6.

By e-mail dated January 3, 2011, the parent wrote to Ms. XXXXX and Ms. XXXXX and stated that she did not know whether the 504 meeting scheduled for January 5, 2012, was necessary because “the main purpose of the meeting was to determine whether [the student] should drop French, and he really does not want to do that. He now has a private tutor for French, so should be able to catch up. [The student] has all the program modifications in place, and we met with his team before break to make sure they understood what was going on.” District Ex. 7-1. The parent expressed a willingness to meet “if the team would like to or if you have other ideas, but I think we have everything in place.” The parent wrote that the student was on a new medication, “had a great break with no XXXXXs”, and while the parent anticipated that her son would continue to struggle with the XXXXXs, “his teachers understand the issues”. Dist. Ex. 7. In conclusion, the parent wrote that unless Ms. XXXXX disagreed, she proposed canceling the 504 meeting and would let Ms. XXXXX know if “things change”. Dist. Ex. 71.

In response, on January 3, 2011, Ms. XXXXX sent the parent an e-mail in which she stated that she would cancel the 504 meeting. Dist. Ex. 7.

The student was enrolled in Enriched English class for the first quarter and dropped it in the second quarter XXXXX Joint Ex. 70; T XXXXX 1316-1317.

In an e-mail to XXXXX dated January 28, 2011, the parent referenced a January 26, 2011, conversation “seeking help in finding another tutor for my son...for home bound instruction.” Joint Ex. 19. The parent explained that the student had missed over thirty days of school due to severe XXXXXs and explained that “[h]e has only accessed a few days of home instruction because when he is ill at home, he is not well enough to do anything. Also, even when he feels okay in the afternoon, he has not been successful in working with the current tutor, XXXXX XXXXX XXXXX that the District has hired.” Id. The parent asked Ms. XXXXX to search for a new tutor particularly to cover biology, Integrated Algebra, and U.S. History. The parent noted that she had found a private French tutor XXXXX Id.

By e-mail dated February 18, 2011, XXXXX XXXXX , the student's French teacher, wrote to XXXXX, the Assistant Principal of XXXXX Middle School, asking to meet about the student. Ms. XXXXX noted that the student, to date, had been absent for 45 days, that Ms. XXXXX had been “in constant contact” with the student's mother regarding the making up of work. Ms. XXXXX explained: I have been given conflicting information from [the student's mother] regarding whether her son should do homework or not, how to count it, whether I should waive it all together, etc. She has changed her mind... many times....” Parent Ex. CC.

By e-mail dated February 28, 2011, the parent informed the guidance counselor, XXXXX that the student “saw a school over break that he absolutely loved” and that “we are looking into all options for him next year, since this year has been so difficult.” Joint Ex. 20. The parent asked that the student's records, including all of the special education evaluations, be sent to XXXXX School. Joint Ex. 20a. The district sent the student's 504 plan and the psychoeducational report to XXXXX on March 1, 2011. Joint Ex. 20b.

By letter dated March 6, 2011, from XXXXX XXXXX Madeleine XXXXX , a neurologist and XXXXX specialist, to XXXXX XXXXX XXXXX and XXXXX XXXXX Fyer, XXXXX XXXXX XXXXX , she wrote regarding her initial evaluation and plan for the student. XXXXX XXXXX XXXXX wrote that the student “confirms triggers of his XXXXXs from stress.” Joint Ex. 22-2. XXXXX XXXXX XXXXX noted that the student “denies anxiety, depression, panic attacks, suicidal ideation, irritability, mood-swings”. Joint Ex. 22-3. XXXXX XXXXX XXXXX prescribed medications XXXXX and XXXXX in combination (at the first sign of an impending XXXXX) and scheduled the student for an MRI and MRA. Joint Ex. 22-5.

By e-mail thread dated March 15, 2011, between the student's mother, Margaret XXXXX and XXXXX , the parent forwarded a prescription from XXXXX XXXXX XXXXX documenting a medical excuse for his second and third quarter absences and grades, “as needed” and noted that she had forwarded XXXXX XXXXX XXXXX 's full report to Nurse XXXXX . Joint Ex. 23-1. Instructional Support Team (“IST”)^[4] minutes dated March 18, 2011, indicate that teacher concerns were excessive absences due to medical issue and difficulty to develop a grade for the student without assessments. “Student has been recommended for outside counseling. Has been seen by XXXXX XXXXX XXXXX .” Dist. Ex. 16. The IST goal is to ensure student receives tutoring. The plan of action is to send work home when the student is absent. The monitoring plan is listed as guidance will follow up with tuto XXXXX Dist. Ex. 16; T XXXXX 1301-1302.

The only documentation that would have recorded whether tutoring occurred was the reimbursement request forms required and maintained by the district office. T XXXXX 1322. Ms. XXXXX completed a form for Tim XXXXXfor eight hours on April 29, 2011, and for XXXXX na Sullivan for two hours on April 12, 2011. Ex. 34-9, 34-10; T XXXXX 1323-1325.

A March 21, 2011, progress note from XXXXX XXXXX XXXXX indicates that the previous week the student returned to school for three days, got a repeat severe XXXXX, medication helped, the student was able to “run around” on Saturday, but then got another severe XXXXX. XXXXX XXXXX XXXXX 's notes indicated that she advised the student's mother to increase the number of therapy sessions with the psychologist, XXXXX XXXXX XXXXX, to 2-3 times per week “to get to probable emotional issue that is causing repeat XXXXXs.” (emphasis in original). XXXXX XXXXX XXXXX also advised the parent to give the student Zonig, get him out of bed and urge him to go to school in the afternoon. T XXXXX 40.

By e-mail dated March 25, 2011, the student's mother wrote to Ms. XXXXX and stated that she would be contacting XXXXX XXXXX XXXXXabout tutoring. She added that the student “has not been up to it, but I'll see what times work for hi XXXXX ” Joint Ex. 24.The parent expressed the hope that the student would be able to finish Algebra, but noted that the student could retake all of his classes in high school. Id.

By e-mail dated March 29, 2011, the student's mother thanked XXXXX XXXXX XXXXXfor agreeing to tutor her son and noted the amount of school and course work her son had missed. She wrote: “he is unable to work when he has a XXXXX, so he has missed a lot of work and tutoring was impossible to schedule.” Joint Ex. 25.

By letter dated April 6, 2011, the district notified the parents of a meeting scheduled for May 31, 2011, to review the student's Section 504 plan. District Ex. 14.^[5]

On April 11, 2011, the parents signed and mailed the XXXXX enrollment contract with a $2,500 deposit by the enrollment deadline. T XXXXX 1813, 1927, Parent Ex. B.

By e-mail dated April 12, 2011, the parent requested an emergency Section 504 program review and a referral to the CSE “to determine whether he is eligible for special education services as a child with an other health impairment.” Joint Ex. 28; Joint Ex. 31. The parent noted that she had not yet heard from Tim XXXXXabout the tutoring and that her son was in need of tutoring when he is not in school. Additionally she noted that her son did receive tutoring in Algebra from XXXXX na Sullivan and described it as “very helpful”. Id.

By letter dated April 13, 2011, Ms. XXXXX acknowledged receipt of the parent's CSE referral, explained the evaluation process, requested the parent's consent for evaluations, and sent a Procedural Safeguards Notice as well as the consent for XXXXX Joint Ex. 32; T XXXXX 135-136, 139. Ms. XXXXX also sent the parent a Social History to complete. T XXXXX 135-136, 139. The parent signed and returned the consent form to the district on April 15, 2011. Joint Ex. 33.

An expedited Section 504 Committee meeting took place on April 15, 2011. T XXXXX 485. It was attended by XXXXX XXXXX , Karin Roberts, an intern with XXXXX XXXXX XXXXX , the parents, XXXXX XXXXX , a general education teacher, XXXXX , the middle school principal, Margaret XXXXX and XXXXX . Joint Ex. 34; Joint Ex. 35-2; T XXXXX 485-486, 742-743. Ms. XXXXX testified that at the meeting, the parents provided a medical update and referenced a number of different specialists the student had been taken to see. T XXXXX 486-487; Joint Ex. 35-2. Additionally the participants discussed all of the questions listed in the parent's e-mail of April 12, 2011. Specifically, the parent asked whether the student should be placed on home instruction for the remainder of the year, whether the student could receive counseling and relaxation when in school, whether the student could receive more help with organization in school to minimize his feeling overwhelmed, whether the student should receive additional evaluations, and whether the student should prepare and participate in Regents and finals. The parent also asked how the student could be helped to access his work and how to set up a tutor that the student can work with. T XXXXX 486; Joint Ex. 28; Joint Ex. 31. The Middle School principal discussed “how to best alleviate stress from the burden of having to make up missed work while planning for exams.” T XXXXX 486-487. The Comments on the Section 504 Accommodation Plan note that teacher reports were also reviewed.

The Committee considered and recommended the addition of counseling to the student's accommodation plan for the remainder of the school yea XXXXX T XXXXX 486; Joint Ex. 35-2. The parents mentioned that the student was receiving therapy from an outside therapist, XXXXX XXXXX Drew XXXXX , a psychologist familiar to XXXXX XXXXX XXXXX . T XXXXX 743-744, 785. There was some discussion about the student's like for the outdoors and that his outside therapist was a good match because he also likes outdoor activity. T XXXXX 490-491, 742-743, 1696-1697. Counseling was going to be provided by XXXXX XXXXX XXXXX who could engage the student in the course of an engaging physical activity.^[6]

The Comments section also notes that a psychiatric evaluation was recommended to be conducted in preparation for the upcoming initial CSE meeting. Joint Ex. 35-2; T XXXXX

489. The parent provided signed consent on April 15, 2011, T XXXXX 490, 649; Joint Ex.

33. Ms. XXXXX testified that the Committee decided that due to the psychoeducational evaluation performed less than a year prior, they determined that no updated psychological or educational testing was needed. T XXXXX 488-489.

XXXXX XXXXX asked for consent to speak to XXXXX XXXXX XXXXX , obtained it, and spoke to XXXXX XXXXX XXXXX within a couple of days of the meeting. T XXXXX 744, 746. At that time, XXXXX XXXXX XXXXX indicated that he had not yet seen the student because the parents were having trouble getting the student to see

hi XXXXX T XXXXX 747. XXXXX XXXXX XXXXX and XXXXX XXXXX

XXXXX agreed that they would share information once XXXXX XXXXX XXXXX got started. T XXXXX 747.

Following the Section 504 meeting XXXXX XXXXX XXXXX never met with the student to provide counseling because the student “never was available when I sought him out. I sought him out on a number of occasions but he was almost never in school.” T XXXXX 746, 783-784.

By e-mail dated April 15, 2011, Ms. XXXXX scheduled a psychiatric evaluation of the student by XXXXX XXXXX XXXXX for May 5, 2011, and the parent confirmed hers and the student's availability. Joint Ex. 36.

IST minutes dated April 18, 2011, indicate that the team convened for 504 program review follow-up. The main teacher concern noted is an inability to grade the student because he was absent in excess of 60 days. Dist. Ex. 16.

The student visited XXXXX for a day on April 22, 2011. T XXXXX 1923.

By e-mail dated April 28, 2011, the parent forwarded to XXXXX , the school nurse, an April 27, 2011, e-mail exchange between her and XXXXX XXXXX XXXXX, XXXXX Fellowship Program Director of the XXXXX Institute and Adolescent XXXXX Center XXXXX Hospital, following up on an appointment the student had with XXXXX XXXXX XXXXX a couple of weeks earlier in April. The student was about to begin week three of a regimen of XXXXX prescribed by XXXXX XXXXX XXXXX and the parent had not seen any improvement. The parent also reported that XXXXX XXXXX XXXXX's advice for the student to take prescribed doses of Aleve and a sports drink only provided temporary relief. The parent reported that the student went to school only two half days of eight school days since their office visit. XXXXX XXXXX XXXXX urged patience and explained that it would take five weeks for the student to reach a full dose of XXXXX and another six to eight weeks for the medication to become most effective. Joint Ex. 38.

A CSE Referral Form, signed April 29, 2011, by XXXXX , principal of XXXXX Middle School, and stamped received by the Office of PPS on that same date, indicates that Instructional Support Team Reviews occurred on April 19, 2010, March 18, 2011 and April 18, 2011. Joint Ex. 39, T XXXXX 1343. Classroom Accommodations and modifications currently used are indicated as being preferential seating, abbreviated assignments, and copy of class notes. State test results are provided. The student's medical conditions are listed as XXXXX XXXXX. The student's social emotional functioning indicates that his organizational and study skills are good and that he has no issues with relationships with peers or adults, his self-concept, or behavioral adjustment. Joint Ex. 39-6; T XXXXX 1377. The form indicates that the student was prescribed XXXXX and Aleve at that time. Joint Ex. 39-6.

Tutoring Request Forms were completed for the student for 2 hours per week tutoring in each of the following subjects: social studies, English, integrated algebra and Living Environment, from April 29, 2011, until the end of school in June 2011. T XXXXX 1375-1376; Dist Ex. 34.

By e-mail dated May 2, 2011, the parent provided a social history update. Joint Ex. 40. The parent noted that the student's XXXXXs have had the greatest impact on his educational performance due to his lack of attendance in school. As of May 2, 2011, the student had missed over 70 days of school, during which he was “in severe pain and unable to work.” Joint Ex. 40-

3. The parent further explained her view that because of the missed school and lack of practice and work, the student showed less interest in school work, appeared to have difficulty writing and had lost interest in reading. Id. The parent also noted the student's organizational difficulties. In terms of the student's emotional/social functioning, the parent stated her belief that the XXXXXs were causing the student to appear “depressed, anxious, unhappy, withdrawn, oppositional and agitated.” The parent further stated that while she did not think that an underlying emotional condition is causing the XXXXXs, “...a neurologist and a psychiatrist have surmised that anxiety could be causing the XXXXXs...” Id. The parent noted that the XXXXXs have “caused social isolation”. Id. The parent wrote that the student “needs as much support as possible to regain his health and energy and then his confidence, love of learning and his organizational and study skills.” Id.

By e-mail dated May 2, 2011, the student's mother forwarded the completed social history to XXXXX XXXXX. The mother stated that while the student was in school that day, she would contact Ms. XXXXX on May 4, 2011, to let her know how the student is feeling “to anticipate whether he will be well for the appointment” on May 5, 2011. Joint Ex. 40.

The parent provided a Social History dated May 2, 2011. Joint Ex. 40-2. The parent provided a brief history of the student's medical history including treatment for his diagnosed severe XXXXX disability, mixed XXXXX disorder and TMJ. Id. The parent included a list of the student's current medications including XXXXX and XXXXX. Joint Ex. 40-3. The parent identified areas of concern for the CSE. The parent noted that the educational concerns, most significantly, were the student's absences which the parent observed are causing the student to have less of an interest in school work, less enjoyment reading and more difficulty writing. The parent also noted that the student has organizational difficulties. Joint Ex. 40-3. The parent also wrote about the impact of the student's XXXXXs on his emotional state. The parent noted her belief that the XXXXXs make the student appear “depressed, anxious, unhappy, withdrawn, oppositional and agitated.” Id. The parent stated that “a neurologist and psychiatrist have surmised that anxiety could be causing the XXXXXs, so we need to explore this as a possibility.” Id. The parent noted that the student's illness has caused social isolation. The parent also noted that when the student is with the close group of friends that he maintains “he appears to be having fun” and when he is at school “he appears happy” even though he stated that he does not like school. Id. In terms of management /behavioral needs, the parent notes that the student generally internalizes problems and does not act out or cause behavioral concerns. Id. In conclusion, the parent stated that the student “needs as much support as possible to regain his health and energy and then his confidence, love of learning and his organizational and study skills.” Id.

Ms. XXXXX testified that she did not hear from the parent on May 4, 2011. T XXXXX

4957. Ms. XXXXX testified that she received an e-mail from the student's mother on the 7 The parent stated that she did not contact Ms. XXXXX the day before because the parent thought that the student “would be well enough....” Dist. Ex. 21. The parent noted that the student “did attend school the rest of morning of May 5, 2011, stating that the student was in a lot of pain and would not be able to make the evaluation appointment. The parent spoke to XXXXX XXXXX XXXXX by telephone. T XXXXX 499.

By letter to the parents dated May 5, 2011, the district scheduled an Initial/Annual Review CSE meeting for May 25, 2011. Joint Ex. 42.

By letter dated May 5, 2011, Dr, XXXXX wrote that he enclosed “the summary of the psychiatric consultation” for the student. Joint Ex. 43. In the summary, XXXXX XXXXX XXXXX noted that the summary was requested by the District “in order to understand the impact of any underlying psychiatric issues upon this student's behavioral/academic functioning.” Joint Ex. 43-2

D XXXXX XXXXX indicated that he had reviewed the student's records, consulted with district staff and had a telephone conversation with the student's mothe XXXXX XXXXX XXXXX XXXXX wrote: “Upon consideration of the various interventions for [the student's] chronic XXXXXs and the impact of his symptoms on his life, I explained that perhaps it would be wise to re-frame his case and view his symptoms as pain induced by chronic stressors.” Joint Ex. 43-2. XXXXX XXXXX XXXXX noted that he discussed a possible home visit that same day with the parent and that they “concluded that there was no need to draw more attention to his difficulties.” Id.

D XXXXX XXXXX recommended an initial parent consultation “with the Pediatric pain management tea XXXXX ” XXXXX XXXXX XXXXX thought that the student “may benefit from a more holistic approach incorporating bio-feedback/relaxation techniques, mindfulness training, and play therapy.” Joint Ex. 43-3. XXXXX XXXXX XXXXX noted that his findings suggested that the student might respond better to behavioral approaches to teach him how to self-modulate his pain response, including access to an outdoor adventure based progra XXXXX XXXXX XXXXX XXXXX suggested an opportunity to meet with the student and his family if it can be arranged by the district. Joint Ex. 43-3.

By e-mail dated May 6, 2011, the parent informed Ms. XXXXX that she followed up on XXXXX XXXXX XXXXX's suggestion for a consultation with XXXXX XXXXX XXXXX at XXXXX and made an appointment with a recommended specialist in “mind/body interactions and pain disorders in children”. Dist. Ex. 22. The parent wrote that she believed that XXXXX XXXXX XXXXX's “theories of pain are just one piece of this puzzle....After thinking about this more, I do believe that it is important for XXXXX XXXXX XXXXX to meet [the student] if at all possible, before submitting a consultation letter to the CSE. I know that XXXXX XXXXX XXXXX does not think that this is necessary, but I think that it is important.” Dist. Ex. 22.

By e-mail dated May 23, 2011, the student's mother wrote to XXXXX , the XXXXX coordinator for curriculum, that the student would be attending in the fall. Dist. Ex. 55, T XXXXX 1926-1927. The student's mother stated with respect to that statement on the e-mail: “It's not true but that's what I told he XXXXX ” T XXXXX 1927.

The CSE meeting occurred on May 25, 2011, with Ms. XXXXX as chair XXXXX the week.” Id. The parent asked to reschedule the evaluation appointment. T XXXXX 496. XXXXX 649. The other participants included the student's mother, XXXXX XXXXX as school psychologist, XXXXX as special education teacher, XXXXX as general education teacher, XXXXX , guidance counselor, XXXXX , substitute school nurse, and XXXXX , psychology intern. Joint Ex. 45. The parties stipulated that no parent member was present at the meeting. T XXXXX 1706-1707.

The CSE reviewed medical information on the student's treatment and condition, XXXXX XXXXX XXXXX 's May 2010 psychoeducational evaluation, XXXXX XXXXX XXXXX's consultation letter, teacher reports and the parent's social history. T XXXXX 507. Ms. XXXXX testified that the Committee did not feel that it had sufficient information to reach any determination because it did not have either a psychiatric report from XXXXX XXXXX XXXXX or a report from another doctor that the Committee had understood would be evaluating the student. T XXXXX 507-508, 666. Ms. XXXXX further explained: “The information that we had was medical in nature and it didn't rule in or rule out any psychological concerns that we had that we would have needed to make a determination on eligibility or to recommend an appropriate program for hi XXXXX ” T XXXXX 508. “To enable the committee to understand [the student's] needs and be able to make an appropriate decision on classification and an appropriate recommendation for a program for hi XXXXX ” T XXXXX 663.“We required information about his psychological functioning, his emotional well-being, and any mental impairment he may be suffering from that may have been intervening or causing the physical condition.” T XXXXX 659. Ms. XXXXX explained that she needed that information because she had only a lot of medical information, but “what seemed to always be a roadblock for me was getting at the psychological part of it, and when I say psychological I XXXXX 't mean cognitive functioning, I am talking about mental – any mental contributing factors”. T XXXXX 661-662. The CSE needed information that would give a clearer picture of the student's emotional needs. Ms. XXXXX stated that the classification of OHI does not require a psychiatric or emotional component and it would have been possible to classify the student as OHI at the time of the meeting. T XXXXX 662. Ms. XXXXX testified that the committee “[t]abled the decision on eligibility pending receipt of the reports, the psychiatric evaluation and the report from the hospital.” T XXXXX 508.

Ms. XXXXX stated that at the end of the CSE meeting, the parent informed the CSE that she had decided to place the student in a private school and that she understood that it would not be at public expense. Ms. XXXXX stated that the parent still wanted the CSE process to continue in the event that the private placement did not work out. T XXXXX 510, 666-667.

During the meeting Nurse XXXXX took notes which she typed up for Nurse McCrory who she was substituting fo XXXXX Dist. Ex. 25; T XXXXX 1390. Ms. XXXXX wrote:

In a nutshell, no action was taken. Too many questions: what would the classification be/ What program would he be in? Is he eligible? The committee will reconvene late

June/early July once reports from XXXXX XXXXX XXXXX and XXXXX

XXXXX XXXXX (Columbia Presb.) and others.

Dist. Ex. 25. Nurse XXXXX 's notes also state that the family “looked at a residential HS program in XXXXX , and [the student] liked it a lot. Would like to go there. Family knows that the district will not send him; it would be privately.” Joint Ex. 25.

A June 1, 2011, appointment was scheduled for the student with XXXXX XXXXX XXXXX, but was canceled. T XXXXX 510.

The parties stipulated that the student missed 105.5 school days during his eighth grade year XXXXX T XXXXX 262-263. The parties stipulated that from March 2, 2011, the student's number of absences escalated. T XXXXX 264.

The District stipulated that the student received medicals as a final grade in English, Living Environment, French, Home and Careers, Physical Education, Computers. T XXXXX 13361337; Joint Ex. 70.

XXXXX XXXXX, Director of Pupil Personnel Services, called the student's mother in early July, 2011, to discuss whether the parents wanted the CSE referral to proceed. XXXXX 154155, 1719. Ms. XXXXX informed the student's mother that if the CSE referral proceeds, it was important to complete the psychiatric evaluation and that XXXXX XXXXX XXXXX had an appointment available on July 19, 2011. T XXXXX 155, 1719.

Within a day or two, the student's mother informed Ms. XXXXX, by phone, that she would have her son available for an appointment on July 19, 2011, and that she wanted to proceed with the CSE process. T XXXXX 159, 1720-1721.

On July 19, 2011, the parent came to the district without the student who she reported was at home “huddled in a ball and very anxious” and was not going to be able to participate. T XXXXX 160, see also T XXXXX 1723. She explained that they would not try to schedule the appointment with XXXXX XXXXX XXXXX again because it would not be productive and instead the parents would provide reports from XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX , who the student had been seeing. T XXXXX 1723. Ms. XXXXX informed the parent that if another psychiatrist and other clinicians who have been working with the student could provide the CSE with some information, Ms. XXXXX would schedule the CSE and use that information for consideration in the decision. T XXXXX 162,

164. The student's mother also informed Ms. XXXXX that the parents hoped the student would be attending XXXXX , but they were not sure and wanted the CSE to provide an appropriate placement for the 2011-2012 school year XXXXX T XXXXX 164, 1721.

On or about August 9, 2011, Ms. XXXXX telephoned the parent, and discussed obtaining reports from the parent and scheduling a CSE meeting. The parent felt strongly that the CSE should convene and make a decision. The parent also discussed the potential of privately placing her son and seeking tuition reimbursement. T XXXXX 168. Subsequently, Ms. XXXXX received reports e-mailed from the parent on August 17, August 18, and August 24, 2011.T XXXXX 169-170. The student's mother forwarded a letter written by XXXXX XXXXX XXXXX XXXXX , (Joint Exs. 49, 50a), a letter from the student's pediatrician, XXXXX XXXXX Michael XXXXX , (Joint Ex. 50b), and a letter from XXXXX XXXXX XXXXX XXXXX (Joint Ex. 51a).

The CSE convened on August 26, 2011, with Ms. XXXXX as chair, XXXXX XXXXX XXXXX XXXXX , school psychologist, XXXXX XXXXX XXXXX a middle school science teacher8, XXXXX , a special education teacher and the student's mothe XXXXX T

8 Ms. XXXXX identified XXXXX XXXXX as a teacher who had taught the student (T XXXXX 184 ) but conceded that she did not know that with certainty and later agreed that he did not. (T XXXXX 208). XXXXX 174-175, 390, 391-392. At the CSE meeting, the team reviewed the previously submitted documentation and acknowledged “the tremendous difficulty” the student had had in the prior yea XXXXX T XXXXX 180-181. The team then reviewed and considered the letters provided by the parents. Ms. XXXXX testified:

Each spoke to a significant XXXXX disorder, but all spoke to underpinnings of social-emotional need of whether it was anxiety, I think one of them used a more general term of stress and school being a trigger, but that there was no question that was real experienced pain, but it was – there was a connection, a causal relationship to anxiety and social-emotional need.

T XXXXX 181. During the discussion about the appropriate classification for the student, XXXXX XXXXX XXXXX asserted that the classification of emotional disturbance could appropriately describe the specific and primary area of need for the student while the parent advocated in favor of a classification of other health impairment since the doctors in at least two of the letters referenced other health impairment and it was also by definition a classification that could be used to describe the student's needs. T XXXXX 182. The team reached consensus that the student was eligible as a student with an other health impairment. T XXXXX 220, 392.

The CSE recommended a special class 8:1:1 as well as counseling twice weekly in an individual session. T XXXXX 186.

Ms. XXXXX discussed placement options with the parent. T XXXXX 179. The options discussed were through XXXXX , one in XXXXX and one in XXXXX XXXXX “The specifics of the level of service were for small class therapeutic environment.” T XXXXX 180, 187-188.

The student's mother testified that she gave notice to the District that she was placing the student at XXXXX at public expense. T XXXXX 1740-1741. After the CSE meeting the student's mother gave verbal notice to the Superintendent of Schools that the mother did not think that the student “had enough support during the 2010-2011 school year, did not have appropriate placement for the 2011-2012 school year, and that the parents would be filing for due process and seeking tuition at public expense.” T XXXXX 1740-1741.

Ms. XXXXX testified that she acknowledged that the referral process to a particular placement would need to be expedited, but that it would not occur by the first day of school. Potential placements would be sent packets of information about the student upon consent of the parents. T XXXXX 190, 192-193. The intake processes of the two programs contemplated typically expect to meet the parents and student at a school visit. T XXXXX 194-195. The student would be entitled to receive home instruction until such time as a placement was secured, a period of up to two weeks, according to Ms. XXXXX. T XXXXX 393-394. The parent shared her feelings about home instruction during the CSE meeting and felt that the student needed to be in school and stated that she felt they would proceed with placing the student in XXXXX School. T XXXXX 191, 396-397. Ms. XXXXX did not ask the parent for consent to send out packets of information to the proposed placements at that time. T XXXXX 196. The parent was not given a draft of the IEP at the end of the meeting. T XXXXX 398, 404. Ms. XXXXX testified that she took minutes at the meeting and entered them onto the form probably a couple of days after the meeting. T XXXXX 178-179; Dist. Ex. 30.

The district received written notice, dated August 30, 2011, of the parents' unilateral placement of the student at XXXXX . Joint Ex. 54; T XXXXX 197, 1741.

By letter dated October 3, 2011, Ms. XXXXX wrote the parents a letter, recapping what had occurred at the CSE review up until that date and requested parental consent to send the educational records to the intake coordinators at the two BOCES programs discussed at the CSE review. She stated that the purpose of obtaining the consent was to “continue the CSE process on behalf of your son and finalize an IEP for hi XXXXX ” Joint Ex. 55-2; T XXXXX 198199.

The parent returned a signed consent and requested, in an e-mail dated October 17, 2011, that the district redact all personally-identifying information from the student's records. The parent also noted that she had been waiting for the draft IEP so that his XXXXX teachers, advisor and counselors could work on the goals. Joint Ex. 56.

By letter dated October 21, 2011, Ms. XXXXX notified the parents that she was able to redact most of the information and informed the parents what information would have to remain in order to send out the referral packets. Ms. XXXXX informed the parents that once she received a response from the parents indicating their approval to send the redacted referral packets with the remaining identifying information, she would do so. T XXXXX 201; Joint Ex. 57. Ms. XXXXX recapped her perspective of what had transpired in relation to a CSE referral or Section 504 referral from the time the parents requested that the student's records be sent to XXXXX to complete his application in March 2011 to the date of her letter XXXXX Joint Ex. 57. Ms. XXXXX informed the parent that consistent with what she had told the parent at the CSE review, the student would have only a draft IEP until such time that a special education day program was identified through the referral process and named on the IEP. Joint Ex. 57-2. She further explained that the IEP remains in draft form until a program name is included on it and only then would the parent be provided with a copy of the IEP. Id. Only a finalized IEP would be presented to the Board of Education for approval. T XXXXX 422.

Ms. XXXXX testified that on November 2, 2011, she forwarded the referral packets to both XXXXX and XXXXX. T XXXXX 201-202, 398. The programs informed Ms. XXXXX that the parents visited the programs. T XXXXX 201-202. Personnel at XXXXX informed Ms. XXXXX that they would need to see the student in order to make an acceptance determination, but that the parents did not seem inclined to have the student participate in the admissions process. T XXXXX 202.

By letter dated December 6, 2011, the parents informed Ms. XXXXX of their visits to the two proposed placements and their impressions. The parents did not find the placements to be appropriate and informed Ms. XXXXX that they were keeping the student at XXXXX School for the 2011-2012 school yea XXXXX Joint Ex. 63.

As of the date of Ms. XXXXX's testimony, February 7, 2012, no final IEP existed. T XXXXX 404.

The District's Position The District's position is that it took appropriate steps to identify, locate, and evaluate the student, and developed timely and appropriate Section 504 plans for both the 2010-2011 and 2011- 2012 school years. The District presented testimony from XXXXX XXXXX and XXXXX , the student's guidance counselors, who testified that they, together with the school nurse, teachers and administrators supported and accommodated the student's academic needs while the student suffered from serious medical issues. The District contends that due to the parents' unwillingness to cooperate with the District's efforts to schedule a psychiatric evaluation of the student, they effectively prevented the District from obtaining an evaluation the District thought was necessary to develop an appropriate IEP.

The Director of Pupil Personnel testified that in preparation for the CSE review, she expected to obtain a psychiatric evaluation that would have included direct contact with the student and offered an informed opinion about a mental health diagnosis and based on that diagnosis, recommendations about how to move forward to serve the student. T XXXXX 148-149. The Director of Pupil Personnel testified that the information in XXXXX XXXXX XXXXX's report was insufficient for the CSE to classify the student with an other health impairment. T XXXXX 363. The committee was seeking the completion of a psychiatric evaluation. T XXXXX 363. The school psychologist and Assistant Director of Pupil Personnel also testified that as part of the CSE, they did not feel that they had sufficient information to make a determination about the student's classification or his needs.

The District maintains that the parents' failure to bring the student to XXXXX XXXXX XXXXX for an evaluation and their subsequent submission of private evaluations in August 2011, prevented the District from developing an IEP in time for the start of the 2011-2012 school yea XXXXX Additionally, the District asserts that the parents' premature unilateral placement of the student in the XXXXX School thwarted the District's ability to develop an IEP in a timely manne XXXXX

The District asserts that XXXXX is not an appropriate placement for the student because it does not specifically address his special education needs and therefore the parents should be denied reimbursement. Last the District maintains that equitable considerations weigh in favor of the District and the parents request for reimbursement should be denied.

The Parents' Position

For the 2010-2011 school year the parents claim that the District failed to meet its Child Find obligations by failing to identify the student as a student with a disability under the IDEIA. Additionally the parents assert that the District's actions or inaction with respect to the student's Section 504 accommodation plan, rose to the level of bad faith or gross misjudgment, in that the student never received counseling and received no home instruction from November 12, 2010 through April 10, 2011, although the student was absent during that period for 58 days and his Section 504 accommodation plan provided for home instruction.

For the 2011-2012 school year the parents maintain that the District denied the student a FAPE under the IDEIA on procedural and substantive grounds. The parents argue that the District did not complete its CSE referral of the student within 60 days from obtaining consent. Additionally the parents assert that the District offered no evidence regarding a proposed placement for the 2011-2012 school year or how it would meet the student's needs. The parents claim that their unilateral placement of the student at XXXXX School is appropriate to meet the student's special education needs and offer proof of his good health, as well as his academic and social progress there to support their position. The parents also maintain that the equities weigh in their favor for an award of tuition reimbursement as they were consistently involved in the process and cooperative with the District.

Applicable Legal Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Board of Education of the XXXXX Central School District v. Rowley, 458 U.S. 176, 206-07 [1982]).

To determine whether a school district provided an appropriate education as required under IDEIA, courts examine: 1) whether the school district complied with the procedural requirements of the IDEA; and, 2) whether the educational plan developed by the school was “reasonably calculated to confer education benefits to the child (Board of Education of the XXXXX Central School District v. Rowley, 458 U.S. 176, 206-07 (1982)). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Ci XXXXX 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Ci XXXXX 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F. XXXXX § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Ci XXXXX Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist. , 471 F. Supp. 2D 415, 419 [S.D.N.Y. 2007] aff'd. 2008 WL 3852180 [2d Ci XXXXX Aug. 19, 2008]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Ci XXXXX 1998]; see Rowley, 458 U.S. at 189). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Ci XXXXX 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Ci XXXXX 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F. XXXXX §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Ci XXXXX 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2D 384, 388 [S.D.N.Y. 2009]. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F. XXXXX § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F. XXXXX § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F. XXXXX § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't 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.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404[1][c].

Findings of Fact and Conclusions of Law

2010-2011

For the 2010-2011 school year, the XXXXX School District Failed to Provide the Student a Free and Appropriate Public Education.

Here, the District failed to provide the student with a FAPE by failing in its obligation to identify the student as a student suspected of having a disability, failing to evaluate the student as a consequence of that obligation, and failing to classify the student as a student with a disability and develop an appropriate IEP. I find that the District's failure to convene a CSE to review the information available to the District, determine if additional evaluations were necessary, and complete the procedures required to identify students with disabilities, resulted in the denial of a FAPE.

The District Violated its Child Find Obligations The District had a duty to fulfill its child find obligations under the IDEA and Section 504. The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. See Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir XXXXX 2006]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd 2010 WL 1049297 [2d Ci XXXXX March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F. XXXXX § 300.111; 8 NYCRR 200.2[a][7]. The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services." 20 U.S.C. § 1412[a][3]; 34 C.F. XXXXX § 300.111[a][1][i]; Forest Grove, 129 S. Ct. at 2495; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]. The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F. XXXXX § 300.111[c][1]; see 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children. Application of a Student Suspected of Having a Disability, Appeal No. 10-009; Application of a Student Suspected of Having a Disability, Appeal No. 09-132; Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090. The District's child find obligation is an affirmative one. A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability." New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dep't of Educ. v. Cari Rae S., 158

F. Supp. 2d 1190, 1194 [D. Haw. 2001]; see Application of a Student Suspected of Having a Disability, Appeal No. 11-092 & 11-094; Application of a Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child Suspected of Having a Disability, Appeal No. 06-087; Application of a Child Suspected of Having a Disability, Appeal No. 05-127; Application of a Child Suspected of Having a Disability, Appeal No. 05-040; Application of a Child Suspected of Having a Disability, Appeal No. 04087; Application of the Bd. of Educ., Appeal No. 04-037; Application of a Child with a Disability, Appeal No. 03-043; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082. To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate. A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L. XXXXX , 478 F.3d 307, 313 [6th Ci XXXXX 2007].

The parents argue that the District failed to provide FAPE for the 2010-2011 school year because the information available to the District as of the time it had the results of XXXXX XXXXX XXXXX 's psycho-educational evaluation and the cumulative information available to it at the June 14, 2010, Section 504 meeting, triggered the District's child find obligation. The record supports the finding that the District did not fulfill its child find obligation for the 2010-2011 school year, however the weight of the evidence shows that based on the information available to the District, the District's obligation was triggered at a later date. ^[9]

By January 3 of the 2010-2011 school year the District had sufficient information to suspect that the student had a disability and to trigger its child find obligation. The record demonstrates that by that time, the student had a pattern of missing school for an increasing numbers of days over the sixth, seventh and eighth grades for, at a minimum, health problems that were having an impact on his education by virtue of the fact that he was not attending school and could not complete his work. The student had dropped his advanced English class. T XXXXX 1681; Joint Ex. 70, and numerous teachers reported that he was missing assignments or that they would not be able to grade him due to his failure to turn in sufficient work. Joint Ex. 18. By January 3, 2011, the District was or should have been aware that by June 14, 2010, the student had missed approximately 30 days of school in the seventh grade. Joint Ex. 8-3, Joint Ex. 69. The same pattern emerged in eighth grade with the student missing approximately 27 days from September to Decembe XXXXX Joint Ex. 67. The April 2010, Section 504 referral form indicates that the District was aware that the student had XXXXXs, was taking prescription medication to address them, had organization issues, and had only “fair” ratings related to behavioral adjustment and relationships with peers and adults. Dist. Ex. 1. The record reflects that the parent informed the nurse on a daily basis if the student was absent and the reasons for the absence. T XXXXX 1661. The record also shows that the guidance counselor was aware of the student's absences because she checked in with the student when he was present, arranged for his homework to be sent home, monitored its return and arranged home instruction. T XXXXX 1232-1233, 1236, 1240, 1257-1258. In early December 2010, the student's mother reached out to XXXXX XXXXX XXXXX for counseling and the possibility of other interventions. Even in the face of conflicting signals from the parents, the District should have heeded the mother's initial call for help and if it was not clear what the parent wanted, under the circumstances of such excessive absenteeism, the District had the obligation to find out.^[10] The existing District psycho-educational evaluation coupled with the student's continued absences should have put the District on notice that the student might be a student with a disability. The BASC-2 results from the previous spring contained the clinically significant score related to XXXXX and an at risk score for the student's attitude toward school. While it may have been reasonable to interpret those results in a particular light and develop the specific accommodations on the 504 plan back on June 14, 2010, by January 3, 2011, the plan clearly was insufficient to meet the student's needs. The plan was not succeeding in getting the student to school and the District had an obligation to identify the student, evaluate him and learn why. All of this information should have given rise to a suspicion that the student was a child with a disability and regardless of whatever theories any particular individual may have had with respect to the student's absences the District had an obligation to identify the student, make a CSE referral, obtain parental consent, conduct their own evaluations, convene a CSE, and make a recommendation regarding the student's eligibility for services.

Additionally, whatever procedures the District maintains that it had in place, with respect to its child find procedures, the nurse did not refer the student to the CSE and the student's Section 504 case manager was unfamiliar with the term and appeared to have no knowledge of its requirements, see T XXXXX 1225-1226, 1357. Moreover, the Director of Pupil Personnel Services, wrote to the parents that the District had fulfilled its child find obligations in relation to the student on June 14, 2010, “when it found [the student] eligible under Section 504 of the Americans with Disabilities Act.” Joint Ex. 61. A district's child find obligations under the IDEIA are not satisfied by the provision of a Section 504 plan under the Rehabilitation Act. See El Paso Indep. Sch. Dist. v. XXXXX XXXXX , 567 F.Supp.2d. 918, 950 (W.D. Tex. 2008); D.G. BNF B.G., 2011 WL 2118813 at *8. The District, therefore, also did not meet its burden to prove that it had adequate procedures in place to meet its child find requirements. Accordingly, the District failed to provide the student with a FAPE for the 2010-2011 school year because it failed to fulfill its child find obligations.

For part of the 2010-2011 school year, the District Failed to Provide the Student with a FAPE by Failing to Evaluate Him, Classify Him and Provide Him with an Appropriate IEP or Special Education Services.

The preferable remedy where the District has failed to evaluate a student, conduct a proper CSE review, and make an eligibility determination, would be to remand the case to the CSE for those steps to be taken. However, the timing of this case precludes that from being an efficacious alternative. The evidence in the record can serve as a basis for making that determination retrospectively.

For the 2010-2011 school year, by January 3, 2011, the information available to the District included: the student's numerous absences from sixth, seventh and eighth grades, the increase in the frequency of the student's absences, the results of XXXXX XXXXX XXXXX 's Psycho-educational Evaluation with the findings of a significant score for XXXXX and at risk score for attitude toward school, XXXXX

XXXXX diagnosis of the student with mixed XXXXX disorder and XXXXXs, the student's mother's Social History about the impact of the XXXXXs and absences on the student's study, social and organizational skills, the notation on the XXXXXNeurology report that there “may be stress and exercise precipitants”, the teachers' reports regarding the student's performance made in preparation for the January 5, 2011, 504 review, and the failure of the existing 504 plan to sufficiently improve the student's educational performance.^[11]

Based on the information available to the District, the evidence in the record supports the finding that if the CSE had convened, the student met the criteria for the classification of other health impairment.

Other health impairment is defined as :

“having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.”

8 NYCRR 200.1(zz)(10).

The student clearly had limited strength or vitality as his XXXXXs completely debilitated him and certainly resulted in “limited alertness with respect to the educational environment.” In fact, the student either could not even make it to school or when he did, he often would go to the nurse or leave after a limited amount of time. Joint Ex. 8. The cause, at that time was thought to be a XXXXX disorder, of a degree or severity that could be considered chronic or acute, such as the list of conditions included by example. Last, the student's XXXXXs most certainly adversely affected his educational performance since he had to drop an advanced English course and was receiving medical excuses in lieu of grades, meaning that he would not earn credit for those courses.

Rather than agree to cancel the 504 meeting the District had scheduled for January 5, 2011, the District should have reviewed the reports completed by the teachers in preparation for that meeting instead of ignoring them, considered all of the information it had in its possession, made a referral to the CSE, and ask the parent for consent to evaluate the student. The District's failure to classify the student or provide him with services in the required time frame was a denial of FAPE.

Parents' Request for Relief for the 2010-2011 School Year

Having found that the District deprived the student of a FAPE for a portion of the 2010-2011 school year, a determination must be made as to whether there is an appropriate remedy. The parents have asked that they be awarded 200 hours of compensatory education services for the hours of home instruction the parents claim the student was owed but did not receive, 20 hours of compensatory counseling, and reimbursement of counseling services provided to the student by XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX .

As an equitable remedy, an impartial hearing officer may order a district to pay costs for unapproved services to allow parents to be reimbursed once they have obtained and paid for appropriate services. See Application of NYC Department of Education, No. 05-073 (citing 20 U.S.C. 1412[a][10][C][ii]; 34 C.F. XXXXX § 300.403[c]; see generally Sch. Com XXXXX of Burlington v. Dep't of Educ., 471 U.S. 359, 370-71 [1985]; A.A. v. Bd. of Educ., 196 F. Supp. 2d 259, 264 [E.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 05-039, at n.7; Application of a Child with a Disability, Appeal No. 05-025, at n.1; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-037). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 37071; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F. XXXXX § 300.148.

With respect to the sessions provided by XXXXX XXXXX , the District shall reimburse the parents for those sessions that provided XXXXX XXXXX the diagnostic information he relied upon to prepare his evaluation report dated August 11, 2011, which the District relied upon for making the student's eligibility determination and to develop his IEP. Evaluative and diagnostic services provided by a licensed physician to determine whether the student has a medically related disability which may result in the student's need for special education and related services are considered related services. Accordingly, upon presentation of proof of those services provided and their costs from May 18, 2011 up until the date of the report, August 11, 2011, the District shall reimburse the parents for those expenses.

With respect to the counseling sessions provided by XXXXX XXXXX , the student was certainly entitled to receive counseling from the beginning of January 2011, when the District should have referred the student for evaluation and developed the student's IEP. The student's need for school-based counseling that was recognized by the District during the May 25, 2011, Section 504 meeting participants only corroborates a finding that the student had a prior need for counseling that could have been addressed by a 504 accommodation plan. Accordingly, the parents are entitled to reimbursement for the five sessions documented in XXXXX XXXXX XXXXX’s letter dated August 19, 2011. Joint Ex. 51.

Compensatory education may be awarded to students still eligible for services but who have not received FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. XXXXX 2008). Compensatory education is an “equitable” remedy that should be designed to “compensate” a student for missed services. Student X v. New York City Dep’t. of Educ., 2008 WL 4890440, at 26 (E.D.N.Y. 2008). This standard is similar to the standards articulated by other courts – the idea that compensatory education should provide services to try to place the student in the same position s/he would be in if the denial of FAPE had not occurred. Id. Further, in determining an award of compensatory education or make-up services, most courts seek to ascertain the child’s needs at the time the relief is sought. Reid ex rel Reid v. District of Columbia, 401 F.3d 516, 43 IDELR 32 (D.C. Ci XXXXX 2005).

The evidence establishes that the student was entitled to two hours of home instruction for every day that he missed school. The home instruction was intended to teach the student the eighth grade curriculum for the courses he was taking. With respect to the 200 hours of home instruction that the student did not receive, regardless of the reasons, the parent has not offered any evidence that the student is in need of academic remediation. Neither the student’s mother nor the student's XXXXX counselor indicated that the student was academically behind. The evidence shows that the student's lower grades were due to his failure to turn in work on time and organization issues. The parents' request for 200 hours of compensatory education services is denied.

The student was entitled to counseling which he did not receive. The evidence supports the finding that the student has emotional needs related to the stressors that trigger his XXXXXs and needs counseling. Accordingly, he is entitled to an additional fifteen hours of counseling, the twenty hours claimed by the parents less the five hours they are being reimbursed for the five previous hours provided by XXXXX XXXXX XXXXX .

2011-2012

For the 2011-2012 school year, the XXXXX School District Failed to Provide the Student a Free and Appropriate Public Education.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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' clai XXXXX Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Com XXXXX of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Ci XXXXX 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Ci XXXXX 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F. XXXXX § 300.148.

Procedural Violations As set forth above, a procedural violation constitutes a denial of a FAPE only if procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in formulating the IEP, or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits. 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F. XXXXX § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; See Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005). The importance of the IDEA's procedural provisions was highlighted by the Rowley Court when it stated: “[t]he initial procedural inquiry is no mere formality” Id. “Adequate compliance with the procedures prescribed [by IDEA] would, in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 U.S. at 206).

Timely Evaluation and Development of IEP The District violated significant procedural requirements depriving the student of a FAPE. The District failed to timely complete its evaluation of the student within 60 days and to provide a recommendation to the board of education in order for it to arrange for the appropriate special education programs and services to be provided to the student within 60 school days. The regulations provide that “[t]he individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student's parents and the CSE pursuant to sections 200.4(b)(7)(i) and 200.4(j)(1) of this Part.” 8 NYCRR Sec. 200.4(b)(1). For a student who previously has not been identified as having a disability, such as the student in this case, the board of education must implement the student's IEP within 60 days of the receipt of consent to evaluate. 8 NYCRR 200.4(e)(1); see also 8 NYCRR 200.4(d). Here, the parents made the referral on April 13, 2011, and signed consent on April 15, 2011. Joint Ex. 32; Joint Ex. 33. The CSE made a determination to classify the student on August 26, 2011 – 133 days later, well beyond the mandated 60 days. The District argues that the parents repeatedly failed or refused to produce the student for the psychiatric evaluation, an explicit exception to the 60 day requirement for an initial evaluation.^[12] 8 NYCRR

200.4(b)(7)(ii) states: “The initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation. The 60 day time frame shall not apply if : the parent of a student repeatedly fails or refuses to produce the student for the evaluation.” The District argues that the Section 504 committee that met on April 15, 2011, recommended that a psychiatric evaluation be conducted as part of the CSE referral process. T XXXXX 488-489; Joint Ex. 35-2. While the parent disputes who originally suggested the necessity of a psychiatric evaluation and that the District did not put the request for evaluation in writing, the fact remains that the 504 plan notes that the recommendation was made and the parent signed consent on April 15, 2011. The District argues that three attempts were made to schedule the evaluation, however, the parents failed to produce the student on each of those scheduled dates. The student's mother testified that on each of the scheduled dates the student had a XXXXX, she could not convince him to go, and she could not forcibly carry hi XXXXX On May 5, 2011, the first scheduled date, the weight of the evidence shows that the student's mother and XXXXX XXXXX XXXXX together decided that it would not be productive for XXXXX XXXXX XXXXX to visit the student at home, an option the parent was amenable to arranging. XXXXX XXXXX XXXXX wrote: “We discussed if conducting a home visit today was helpful and concluded that there was no need to draw more attention to his difficulties.”Joint Ex.43; T XXXXX 1699-1703. Evidence in support of this finding lies in the fact that the student's mother immediately followed up on the recommendation made to her by XXXXX XXXXX XXXXX during their May 5, 2011 telephone conversation. Dist. Exh. 22. On the second scheduled date, June 1, 2011, the student had a debilitating XXXXX and the parent was unable to bring him to XXXXX XXXXX XXXXX's office. On July 19, 2011, the student's mother explained that the student had seemed fine earlier in the day and when she attempted to have them leave for the scheduled appointment at the District, the student's reaction and refusal to go was so extreme that it frightened he XXXXX T XXXXX 1722. Given the difficulty the parent was having in bringing the student to XXXXX XXXXX XXXXX, if the District thought that the evaluation was critical to reaching a CSE determination, the District had the affirmative obligation to get the evaluation conducted even if it meant sending a psychiatrist to the student's home. Weighing the circumstances as a whole, the provisions of 8 NYCRR 200.4(b)(7)(ii), do not apply and the CSE failed to timely evaluate the student and make its recommendation. Thus, the District's failure to make a timely evaluation and recommendation adversely impacted the student because it significantly delayed any consideration of his classification and the development of his IEP. In fact, the District still has not given the parent a final IEP. The procedural violation, in this instance, resulted in a denial of a FAPE.

CSE Composition Parent Member The parents assert that the CSE was improperly constituted because there was no parent member present at either the May 25, 2011, or the August 26, 2011, CSE meeting. See also Joint Ex. 45, Joint Ex. 52. New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]. The parties stipulated that no parent member was present at the meeting. T XXXXX 1706-1707. The student's mother testified that she would have benefited from the presence of a parent member because the meeting was very difficult for her and the parent member would have provided support, advocated for the parent and would have noted the need to classify the student immediately. T XXXXX 1707-1708. The student's mother testified that she is aware that you could request a CSE meeting be adjourned if a parent member is not available, but did not think of it then. T XXXXX 1948. The student' mother did not raise a concern about the absence of the parent member because her “main concern was going forward with the

200.4(b)(7)(ii) creates an exception under the circumstances described. meeting. T XXXXX 1949. With respect to the August 26, 2012, CSE the student's mother testified that she would have benefited from the presence of a parent member because the district was proposing a more restrictive placement and “it was difficult to know exactly how to approach the meeting because no one at the meeting really knew [the student] except me. I didn't feel like there was an understanding. A parent member would have been helpful in providing support and being an advocate.” T XXXXX 1726. While the presence of a parent member might have been a source of support or comfort to the parent, the absence of the parent member under the circumstance does not rise to a procedural violation that deprived the student of a FAPE. The hearing record indicates that the student's mother was able to actively participate at both the May 25, 2011, and August 26, 2011, CSE meetings, and did so, stating her beliefs that the student required classification, that the information that the CSE had was sufficient to classify the student as other health impaired at the first meeting, and successfully advanced her belief that other health impaired was the appropriate classification rather than emotionally disturbed, at the second meeting. Under the circumstances I find that the lack of an additional parent member did not impede the student's right to a FAPE, significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits to the student (W.S. v. Nyack Union Free Sch. Dist., 2011 WL 1332188, at *8-*9 [S.D.N.Y. Ma XXXXX 30, 2011]; see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman, 550 U.S. at 52526; A.H., 2010 WL 3242234, at *2; E.H., 2008 WL 3930028, at *7; Matrejek, 471 F. Supp. 2d at 419). Special Education Teacher or Provider The IDEIA requires that an IEP be developed by a group of individuals including at least one special education teacher, or where appropriate, at least one special education provider of such child (20 U.S.C. § 1414[d][1][B][iii]; see 34 C.F. XXXXX § 300.344[a]; 8 NYCRR 200.3[a][1][iii]). The Official Analysis of Comments to the federal regulations indicates that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP (IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]). In Application of a Child with a Disability, Appeal No. 00-031, the State Review Officer held that the student’s special education teacher member of a CSE could be the student’s private school teacher, a special education teacher who was likely to implement the student’s IEP, or the student’s related service provide XXXXX He noted that it was unreasonable to expect a board of education to designate the special education teacher who would be a student’s teacher before the CSE had met to even determine the student’s needs. \He went on, however, to point out that it was reasonable to expect that a board of education would have sufficient information about the student to designate a special education teacher who was not only appropriately certified to teach the student, but was also teaching in one of the programs which might be appropriate for the student. (Application of a Child with a Disability, Appeal No. 05-087). There is no evidence in the record that the special education teacher who participated in the CSE meeting was remotely familiar with the student or had any experience in the types of programs under consideration for the student. (20 U.S.C. § 1415[f][3][E][ii]; see 34 CFR 300.513; 8 NYCRR 200.5[j][4]). Coupled with the fact that no one at the meeting besides the student's mother really knew the student and no one seemed to have substantive information about the possible programs and placements, the failure to provide an appropriately qualified special education teacher is found to have caused a loss of educational benefit, impacted adversely on the parent's participation and compromised the development of an appropriate IEP. Regular Education Teacher The IDEIA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R § 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; 34 C.F. XXXXX § 300.324[a][3]; 8 NYCRR 200.3[d]). The New York State regulations require that a general education teacher participate in the CSE whenever the student is or may be participating in general education. 8 NYCRR 200.3(a)(1)(ii).

The record establishes that the general education teacher had no familiarity with the student. Since the student always had been a general education student and the recommended program was a special education program, the District should have had a teacher present who was familiar with the student and who meaningfully could participate in the development of the student's IEP. Taken together with the failure of the district to provide the requisite type of special education teacher, the failure to provide a general education teacher who was familiar with the student deprived the student of a FAPE.

Substantive Violations

No Placement Offered

The District did not put on any evidence to prove that it offered an appropriate placement to the student for the 2011-2012 school year XXXXX Although the District argues that the parents' actions prevented it from offering a timely appropriate placement, my finding with respect to the parents' actions and the psychiatric evaluation are applicable here as well. The District also argues that the parents' unilateral placement of the student was premature and prevented the District from making a timely offe XXXXX The record does not support this finding. Accordingly, for failure to offer the student a placement for the 2011-2012 school year, the District denied the student a FAPE.

Once a determination is made that the District failed to provide the student with a FAPE, the analysis turns to whether the parents' unilateral placement is appropriate.

Prong 2: The parents did not meet their burden of proof to show that XXXXX School was an appropriate placement for the student.

The well established standard parents must meet to prove the appropriateness of their placement is that “the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Ci XXXXX 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89; see also, 20 U.S.C. § 1401[29]; 34 C.F. XXXXX § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Ma XXXXX 18, 2010]).

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Carter, 510 U.S. at 14. The private school need not employ certified special education teachers or have its own IEP for the student. Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112; see XXXXX S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Ci XXXXX 2000]. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Ci XXXXX 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]. Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

Based on the circumstances in this case, as discussed more fully below, I find that the parents have not met their burden of demonstrating that XXXXX provided educational instruction specially designed to meet the student's unique educational needs during the 2011-2012 school year XXXXX

The student's special education needs have been identified throughout the record. The student achieved high grades, yet consistently was in need of help with his organizational and study skills. This need was identified at the 504 meetings as well as at the CSE meetings. Joint Ex. 53. The student was in need of counseling to address his significant social-emotional concerns. T. 1731-1732. The student was in need of intervention to address his attitude toward school and XXXXX issues. The student needed to improve his ability to cope with and manage stress related to academics and social situations. The student was noted to have anxiety. The parent asserted that the student 's needs included placement in a residential setting and attributed the student's need for a residential setting to the need to break the cycle of school avoidance.

XXXXX XXXXX , the treating psychiatrist, explained in his testimony and in the report he prepared for the CSE meeting that the student had extensive medical testing that resulted with no finding of an organic diagnosis for the student's severe XXXXXs. This result, coupled with the “chronological correlation with school times, as well as with indications of school-related anxiety, have raised the question of stress-induced psychogenic contributants to the physical symptoms.” Joint Ex. 50a. XXXXX XXXXX added:

The relatively prompt cessation of [the student's] XXXXXs with the end of classes in June 2011, together with other atypical features of his XXXXX pattern, are strongly suggestive of the major role of anxiety and school avoidance in the evolution and persistence of the XXXXXs. Furthermore, aside from [the student's] intrinsic vulnerability to anxiety, there are indications of social anxiety with peers. The fact that these disabling

XXXXXs resisted rather sustained efforts at neurological, psychiatric and antibiotic treatment over the past academic year, suggests that there are features of [the student's] complex neuropsychiatric condition that make it inadvisable for him to continue his education at this time within the local public school system XXXXX Joint Ex. 50a-1. XXXXX XXXXX XXXXX concluded that based on his findings, “it is highly advisable to shift [the student] to a smaller environment, with small classes, where he can receive both supportive counseling and educational services that enable him to return to normal social and educational functioning. Insofar as the existing family dynamics have inadvertently predisposed to and tolerated the now chronic pattern of [the student's ] school avoidance, despite efforts at ongoing psychotherapy, I believe that school placement away from home is advisable.” Id. XXXXX XXXXX XXXXX also stated that the student will require neurological, medical and psychiatric follow-up. Id.

XXXXX XXXXX , the student's psychologist, explained his views of the student's needs and an appropriate placement in a letter to the CSE as well. XXXXX XXXXX XXXXX echoed XXXXX XXXXX XXXXX 's view that the medical doctors who have evaluated the student agree that he has “a biological propensity to get XXXXX XXXXXs” which are “partly triggered by and exacerbated by both physiological and emotional stresses....” Joint Ex. 51-2. XXXXX XXXXX XXXXX agreed that the pattern of the student having XXXXXs primarily on school days and less frequently on weekend or vacations suggested that “stress from school was a major contributor to his problem, as he himself had suggested....” Joint Ex. 51-2.

Regarding the type of school placement XXXXX XXXXX XXXXX recommended, he wrote:

...it is unlikely that [the student] will succeed in the 9th grade if he continues in the mainstream public school system XXXXX ...His medical/emotional disability , which could easily be classified as Other Health Impaired, demands a small, individualized learning environment that reduces stress and supports his emotional development. He needs a clearly structured day (including evenings)

and the ongoing provision of support from teachers and staff that can focus on his unique needs....Additionally, living away from home can help him from falling back into old habits and can provide him with greater opportunities for the type of outdoor activities in which he has thrived.

Joint Ex. 51-2. XXXXX XXXXX XXXXX testified that he recommended a smaller school environment because the student was “finding himself overwhelmed with social demands and with just sort of the sheer number of people that he was sharing his classes with.” T XXXXX 1056. XXXXX XXXXX XXXXX explained that a smaller school environment would allow the teachers to get to know him better and allow him to sort of feel more comfortable and less overwhelmed by social pressures.” Id. XXXXX XXXXX XXXXX testified that an individualized learning environment would benefit the student, “particularly if he had a XXXXX, he would fall behind and become quite anxious about being behind and a more individualized learning environment would allow him to pick up right where he left off rather than—or I suppose to get some fill in the gap kind of meetings with staff rather than having to jump back in and figure out what he had been missing over the past few days.” T XXXXX 1057, see also T XXXXX 1114. XXXXX XXXXX XXXXX believed that a more structured environment would benefit the student because the student specifically stated that “he would like a more structured environment; that he thought that going to a place where homework time was structured and monitored by adults who could be there to help that were not parents involved in his work, he felt that was wonderful.” T XXXXX 1057. Since XXXXX XXXXX XXXXX agreed with the student's assessment on the benefit of the structured homework time he supported that facto XXXXX Id. With respect to the benefit to the student of placement away from home, XXXXX XXXXX XXXXX testified: “I never had a great handle on the dynamics at home that may have been reinforcing XXXXXs, but I know that when the student was away at camp, he liked to be independent and I understood there could be some dynamics at home that were somehow reinforcing or not minimizing or reducing the frequency of XXXXXs.” T XXXXX 1057-1058, see also T XXXXX 1116-1117. XXXXX XXXXX XXXXX thought that a placement with outdoor activities would be a benefit to the student because they are therapeutic for the student and boosted his self esteem XXXXX T XXXXX 1058.

Upon visiting XXXXX , the parents viewed it as “a perfect fit.” T XXXXX 1805. The student's mother's described her understanding as to the special services XXXXX would provide as a “therapeutic environment without being overtly therapeutic.” The student did not qualify for a therapeutic residential program because he did not have needs that would qualify him for that. T XXXXX 1806. The parent attributed the student's need for a residential setting to the need to break the cycle of school avoidance he was in that was caused by the district's failure to provide appropriate services. The student's mother explained:“Therapeutic boarding school that was for just students with disabilities would not have been appropriate for [the student] but XXXXX is different, he is with all nondisabled peers.” T XXXXX 1822-1823. The parent also noted that the around the clock nursing care is essential to the student. T XXXXX 1826.

The parents presented one witness from XXXXX , XXXXX ald XXXXX , an English teacher and school counselor XXXXX T XXXXX 1550. XXXXX XXXXX XXXXX described XXXXX as a college preparatory school with a heavy emphasis on physical activity. T XXXXX

1581. XXXXX XXXXX XXXXX stated that XXXXX 's mission statement is “to grow young people so they can have opportunities for later in life, with the philosophy “in a friendly, supportive candid community where there won't be a lot of judgment and where kids won't be ostracized and where they can speak eye to eye with good adults, then they grow, they just blossom and that isn't spelled out anywhere but I think we all share it.” T XXXXX 1554. XXXXX 's core values are responsibility, compassion, courage , integrity and respect. T XXXXX 1554. XXXXX XXXXX XXXXX stated that the activities to instill these values in the student are the formal sports program which for the student was rock climbing with XXXXX XXXXX XXXXX in the fall and recreational skiing in the winter, in a less structured format. T XXXXX 1555-1556. XXXXX XXXXX XXXXX explained that volunteer community service work also helped the student to grow. T XXXXX 1556-1557.

XXXXX XXXXX testified that XXXXX has 172-173 students enrolled for the 2011-2012 school yea XXXXX The school serves grades nine through twelve. T XXXXX 1788.The school is mainly in one building in an isolated setting. The 9th grade has twenty students. T XXXXX 1560. There are nine to twelve students per class. XXXXX XXXXX testified that XXXXX accepts students “based on what we feel is a good fit and a likelihood of success.” T XXXXX 1552. XXXXX XXXXX XXXXX testified that the admissions materials included the parents' explanations and documentation of the student's struggles in school as well as specific recommendations from school teachers. XXXXX XXXXX XXXXX noted that the student's “intellect was going to be sufficient”, but the school was uncertain about whether the student's XXXXXs were going to be an issue. T XXXXX 1560-1561.

M XXXXX XXXXX testified that the admissions information assisted in the process of selecting the student's advisor, XXXXX , the school nurse. T XXXXX 1561. XXXXX XXXXX XXXXX explained that the role of the advisor is “pretty loose, we want to make sure no student is left alone.” T XXXXX 1574. The advisor is an initial contact for the parents and an individual who the parents can contact. T XXXXX 1574. XXXXX XXXXX XXXXX elaborated: “It's just it's a little bit of a firewall to make sure that every kid has some adult eyes on him or he XXXXX ” T XXXXX 1575. The advisor does not provide any formal academic support. “It's not a huge part of a student's life.” T XXXXX 1785.

XXXXX has a second school nurse, who lives on the same floor as the student. T XXXXX 1561-1562. XXXXX XXXXX XXXXX testified that the nurses monitor the student. T XXXXX 1573. Generally speaking, the teachers fill out a form and sign it each time a student takes medication, the nurses collect the sheet and keep a chart, and “keep the parents generally informed as to how it's going.” T XXXXX 1573-1574.

M XXXXX XXXXX testified that at XXXXX , XXXXX drafted an accommodation plan for the student. T XXXXX 1562; Parent Ex. XXXXX XXXXX . XXXXX XXXXX XXXXX recollected “it as being more academic about extended time and preferential seating.” T XXXXX 1563. XXXXX XXXXX XXXXX recalled that he was “most interested” in the “regular counseling” and as a staff they were “going to keep an eye on the XXXXXs, talk about that as an alert.” T XXXXX 1563. XXXXX XXXXX XXXXX testified that many students' accommodation plans and IEPs are satisfied by the nature of XXXXX 's “regular offering[s].” T XXXXX 1790-1791. XXXXX XXXXX XXXXX testified that XXXXX is not a therapeutic school, but XXXXX happens to have all of the factors that go into a therapeutic school: “honesty, predictable cause/effect patterns, integration into social groups, learning one's role as part of a larger community bigger than one's self.” T XXXXX 1581.

M XXXXX XXXXX testified that he provided regular counseling to the student. T XXXXX 1563-1564, T XXXXX 1791. XXXXX XXXXX XXXXX described the counseling as “very structured”, initially. XXXXX XXXXX XXXXX explained that he was asked by the parents for weekly conversations. XXXXX XXXXX XXXXX informed the parents that he was not going to provide therapy since he is “a coach” or “a counselor”. T XXXXX 1564. During the first marking period XXXXX XXXXX XXXXX stated that his “guess” was that he met with the student on five Tuesdays, and each of them forgot an appointment on two other weeks. T XXXXX 1564. Subsequently, XXXXX XXXXX XXXXX stated that he “let that become much less formalized.” Id. XXXXX XXXXX XXXXX stopped down to the student's room “frequently” and chatted with the student, had lunch with him or walked a trail on the way to a cliff, as XXXXX XXXXX XXXXX “judged the need.” Id. XXXXX XXXXX XXXXX testified that these types of meetings occur at least on a weekly basis. T XXXXX 1792. XXXXX XXXXX XXXXX testified that the counseling has “gone well and more superficial” than XXXXX XXXXX XXXXX had expected. T XXXXX 1572. He added that he was not sure “if this is what his parents were expecting, I want him to succeed here and if he is not manifesting problems, I am not going to continue to remind children that, oh, let me remind you, let's talk about those problems you used to have. I talked about how is it going today. So they are shallower than I thought they would be....” T XXXXX 1572-1573. XXXXX XXXXX XXXXX testified that there is no consulting psychiatrist or psychologist on staff. T XXXXX 1774-1775.

M XXXXX XXXXX testified about the class schedules. The fall structure is: optional breakfast from 6:45 to 7:15; classes from 7:45 through 1:30 am; lunch; followed by classes until 2:30 p XXXXX Sporting activities run until 5:00 or 5:30 pm, followed by mandatory dinnertime, followed by two hours of supervised dorm study13 with teachers monitoring the students' behaviors, then an hour of free time followed by a 10:45 time for lights out. T XXXXX 1576-1577. Additionally, the lower grades have a supervised structured study hall for one period a day, during their free period, where they have support from two teachers who check in on the students' planners, organization of their work and content. T XXXXX 1559, 1783-1784.

M XXXXX XXXXX testified that the student is “doing okay”, with “a little ragged edge here and there” academically. T XXXXX 1568. XXXXX XXXXX XXXXX elaborated : “...I think he is probably above average in the freshman class but in need of a little discipline academically.” T XXXXX 1568. XXXXX XXXXX XXXXX stated that XXXXX would provide that discipline once a student looks like they are comfortable. “He has got some organizational issues and we increase our demands every year steadily.” T XXXXX 1568-1569. XXXXX XXXXX XXXXX testified that he has spoken to the student's teachers regarding the student's organizational issues during informal encounters, when in keeping with the culture of the school, the teachers routinely and regularly share each others' observations. T XXXXX 1750-1751. XXXXX XXXXX XXXXX did not recollect any formal conversations with the students' teachers about how the student could improve his organizational skills. T XXXXX 1767-1768.

M XXXXX XXXXX could not answer whether the student has progressed academically. T XXXXX 1579. XXXXX XXXXX XXXXX testified that he could not “give you empirical data” with respect to whether the student has benefited academically from being at XXXXX . XXXXX XXXXX XXXXX stated that he trusts that “the barrage of homework and the constant daily supervision and the two-hour study hall are “gaining traction” and he hasn't “heard otherwise”. T XXXXX 1581-1582. XXXXX XXXXX XXXXX

13 M XXXXX XXXXX later described a two hour supervised study period during which the student must put all electronic equipment outside of their rooms. T XXXXX 1782-1783. XXXXX XXXXX XXXXX described a smaller group of students who were placed in a separate supervised room during this two hour period because they required “an adult staring at them while they used that time.” T XXXXX 1783. XXXXX XXXXX XXXXX did not think that the student had been elected to that smaller group in the fall. T XXXXX 1783. XXXXX XXXXX XXXXX did not know whether he received an e-mail dated February 9, 2012, on which he is listed as a recipient, from XXXXX , announcing the cancellation of “evening supervised study hall/bullpen for students who are weak academically.” Parent Ex. SS-2; T XXXXX 1771-1772. The e-mail indicates that the student is one of several students who as of the date of the e-mail is now to be assigned to the library during his free period. Parent Ex. SS-2, SS-

3. The theory behind the change is to provide these students “the attention they need from the study hall monitor, learn study skills, how to manage their time, and also, get extra help from the teachers who are free when those students are in the library. Parent Ex. SS-2. XXXXX XXXXX XXXXX stated that he presumed that the student was assigned to the library during his free period because XXXXX XXXXX XXXXX understood that all freshman and sophomores, regardless of their academic success, were assigned to the library. T XXXXX 1773. testified that he believed that he observed the student, informally, just in an English class. T XXXXX 1750.

= XXXXX XXXXX was aware that the student's grades in World Culture and Spanish are his two lower grades. XXXXX XXXXX XXXXX stated that he does not know the teachers' particular comments without being able to reference the reports. T XXXXX 1757- 1758. He was not aware that the student was absent on two quiz days from World Cultures class. T XXXXX 1761-1762.

According to the second quarter report, the student's World Cultures teacher stated that “The issues lie with his diligence in his class work preparation. Twice he was ill on quiz days, and was very lackadaisical about making them up. Of the quizzes and tests he completed, he received a 14% on one and a C plus on the recent test on India. I understand that [the student] gets stressed out by the pressure of work, but that does not release him from his responsibilities.” Parent Ex. TT-3. The student's second quarter grade dropped from a C plus to a C and his effort dropped from a “Good” rating to “Fair”. Parent Ex. TT-2.

On the second marking period report card, the student's Spanish teacher wrote: “[T]he student has not worked hard to improve during the second quarter in Spanish II. A considerable amount of homework assignments (5) were either missing or incomplete during the quarte XXXXX ” Parent Ex. TT-1. He finished the quarter with a C plus and semester grade of C.

The student's science teacher noted that the student “has a great mind for science”. Parent Ex. TT-2. The teacher also noted that the student's “disorganization resulted in 2 late and 1 missing homework assignments this quarte XXXXX ” Id. The student maintained a B plus average from the first quarte XXXXX

In Geometry the student's teacher noted that the student is “one of the top students in the class.” Parent Ex. TT-2. The teacher wrote that the student is “the most active participant in class discussion and he shows a genuine interest in the topics that we are studying.” Parent Ex. TT-2. The student earned a quarter grade of A-, down from an A the first quarter, with a semester grade of A-. The lower grade appears to be due to a B- on the midterm exam, a grade the teacher noted “was a bit of a disappointment”. Id.

XXXXX XXXXX testified that the student is doing “really well” with his peers based on his own observations as well as those of the student's teachers and North wood administrators. T XXXXX 1566-1567.

XXXXX XXXXX testified that he does not know if the student has difficulty handing in assignments on time or keeping track of his papers. T XXXXX 1765. XXXXX XXXXX XXXXX has not heard that the student has difficulty coming to class prepared for the day. Id.

The student's mother testified about the student's progress. “His health is virtually 100 percent improved. He has had three to four XXXXXs during the year after having 120 days of XXXXXs in the past school year, it's an amazing improvement. He is now off his anti-migraine medication. He is off the XXXXX, he is off the Amitriptyline. He is still on the XXXXX but I think in consultation with XXXXX XXXXX XXXXX he will be able to be off that by the end of the yea XXXXX He is feeling great and his health is much improved.” T XXXXX 1814-1815. Academically, the student's mother highlighted the fact that the student has missed only three to four days of school, is passing every class and believes that the student is doing “astoundingly well” given the amount of school he missed last year XXXXX T XXXXX 1814-1815. The student's mother acknowledged variability in the student's grades, but emphasized that this year the greater concern is that the student attend class and learn. T XXXXX 18115-1816. The student's mother acknowledged that there is some concern about the student's organization and his ability to turn in assignments, but that she has been in contact with the teachers to address it. T XXXXX 1815. Socially, the student is integrated in the class and has “a very supportive peer group.” T XXXXX 1821-1822. The student's attitude toward school now is “much improved” as shown by the student talking about his work, he does his work, he is passing his classes. T XXXXX 1823-1824.

The parents asked XXXXX XXXXX XXXXX to administer the BASC-2 to the student both as a measure of his status and in preparation for this hearing. XXXXX XXXXX XXXXX administered the BASC-2 to the student only on February 13, 2012. T XXXXX 1444; Parent Ex. HH. XXXXX XXXXX XXXXX believed the test results provide an accurate reflection of the student at the time. T XXXXX 1445. The test showed no clinically significant or at risk scores. T XXXXX 1448.

A test result that stood out to XXXXX XXXXX XXXXX was the student's T score of 42, “at the low end of average suggesting he has a very good attitude to school, positive adjustment to school”, as compared to that same score on the student's BASC-2 taken in May 2010, when his T score was 63, in the at risk range. This “two standard deviation drop in his score...suggests a significant level of change in his attitude to school and that level of change is for the bette XXXXX ” T XXXXX 1451. In speaking with the student XXXXX XXXXX XXXXX understands that the change is attributable to the student feeling much more comfortable at this school, able to learn in an environment that is much more tailored to his needs and that he is being challenged but receives the support that he needs. XXXXX XXXXX XXXXX believes that attending XXXXX “has made a world of difference for hi XXXXX ” T XXXXX 1462. From the test results, XXXXX XXXXX XXXXX concluded that there are no pressing emotional concerns since all of the student's scaled scores or T scores are within the average range. T XXXXX 1465.

Based on the circumstances in this case, I find that the parents have not met their burden of demonstrating that XXXXX provided educational instruction specially designed to meet the student's identified special education needs during the 2011-2012 school year XXXXX As a result, the program cannot be found to be appropriate for the student under the IDEIA. Although the parents advocate that the student's counseling is designed to meet his specific needs, the only element of the counseling that appears to be so is the less-structured format of checking in with the student in a more natural way or on his turf. The weight of the testimony about the student's needs speaks to the physiological and emotional stressors, as well as anxiety about social interactions that trigger the student's XXXXXs. While the student is not reported to be suffering from more than the very infrequent XXXXX, there is no evidence that any of his underlying emotional issues have been addressed or that XXXXX XXXXX XXXXX even is familiar with the XXXXX XXXXX XXXXX XXXXX did not offer any testimony about the student's emotional or counseling related needs. Notably there is no psychologist or psychiatrist on staff.

Similarly, the student continues to exhibit issues pertaining to organization issues and study skills. There is no evidence in the record to show that any of the teachers or XXXXX XXXXX XXXXX is addressing these needs. XXXXX XXXXX XXXXX was not even aware of the degree of impact these issues were having on the student's academic performance.

Although the record shows that the student is attending class, achieving average to excellent grades, and has positive peer relationships, XXXXX School does not provide the student with any instruction or services specific to this student or his special education needs. While the parents determined that XXXXX was the right school for the student to address his needs, and made this decision as loving and responsible parents, the District is not responsible for reimbursing the parents for this type of progra

XXXXX

Equitable Considerations

With respect to the equities in this case, although I am not required to weigh them in light of finding that the XXXXX School does not meet the criteria for reimbursement under the IDEIA, it must be noted that the parents fully cooperated with the District and the CSE process. The parents were in frequent and regular communication with the student's school and District personnel. The parents provided all necessary documentation. As discussed above, the record supports the finding that the parents did not thwart the District's evaluation of the student because the student made it nearly impossible to get him go to the psychiatrist at school or the psychiatrist's office. The parents also were active participants in the Section 504 meetings and the CSE meetings.

The District argues that once the student decided that he wanted to go to XXXXX , the parents had no intention of sending the student anywhere else. The record supports the finding that the parents hoped that the student could go to XXXXX , but that they lived with very real uncertainty about whether the student would be able to go and wanted an appropriate placement from the District. The parents were open to a recommendation from the District and followed up on two proposed placements. The district argued that the parents refused to bring the student to the potential placements, yet there was no evidence in the record that the parents were asked to bring him and that they refused. The District has not yet recommended a placement or completed the student's IEP. T XXXXX 404

Section 504 Claim

The parents claimed that the District violated Section 504 of the Rehabilitation Act during the 20102011 school yea XXXXX

Section 504 provides that “[n]o otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” 20 U.S.C. Sec. 794(a).

In order to prove a violation of the Rehabilitation Act, a plaintiff must show that “(1) he is an individual with a disability; (2) he is otherwise qualified to participate in a particular program; (3) he was denied that participation based upon his disability; and (4) the program receives federal funds.” 20 U.S.C. Sec. 794(a).

A recent Southern District of New York case discussed the standard for a Section 504 claim brought in conjunction with an IDEA clai XXXXX In C.L. Ex rel C.L. v. Scarsdale Union Free School District, the court found that:

A plaintiff may assert a Section 504 claim in conjunction with an IDEA claim on the theory that she has been denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive”; in so doing, however, the plaintiff must show that “defendants acted with bad faith or gross misjudgment in the administration of disability services.”

2012 WL 983371 at *8.

Given my finding that for a portion of the 2010-2011 school year the District failed to provide the student with a FAPE, the parents have shown that the student meets the criteria to establish a prima facie claim under Section 504, however, the record does not support a finding that the District acted with the requisite bad faith or gross misjudgment in the administration of disability services.

Despite the failure of the District to timely identify the student for IDEIA purposes during the 20102011 school year, the record reflects that the XXXXX Middle School teams, Section 504 Committees and CSE, intended to act in the interest in the student, held meetings to address his needs, were in frequent contact with the parents about how to help the student keep up with his work, developed a 504 plan, and provided accommodations. The accommodations proved to be ineffective to address the student's needs, but there is no evidence that the District personnel acted with bad faith or gross misjudgment. The parents allege bad faith on the part of the District because the student did not receive counseling and in the administration of the student's home tutoring. In the context of the student's frequent absences, the sometimes understandably conflicting messages from the parents and his debilitated condition when he was at home with XXXXXs, the District's actions or inaction are not found to be taken with bad faith or gross misjudgment.

Accordingly, the parents' Section 504 claim is dismissed.

ORDER

For all of the above reasons, it is hereby ordered that:

1. The XXXXX School District denied the student a FAPE for a portion of the 20102011 school year;

2. The parents are entitled to reimbursement for XXXXX XXXXX XXXXX 's psychiatric sessions with the student from May 18, 2011 up until the date of his report, August 11, 2011, upon presentation of proof of those services and of payment;

3. The parents are entitled to reimbursement for the five sessions documented in XXXXX XXXXX XXXXX letter dated August 19, 2011, upon presentation of proof of those services and of payment;

4. The student is entitled to fifteen hours of counseling at District expense;

5. The XXXXX School District denied the student a FAPE for the 2011-2012 school year;

6. The parents' request for tuition reimbursement is denied; and

7. The parents' Section 504 claim for the 2010-2011 school year is dismissed. Dated: May 30, 2012 (Corrected June 21, 2012)

____________________________

Lana S. Flame, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Scarsdale Union Free School District 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.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions for filing an appeal and forms can be found on the Office of State Review website: www.sro.nysed.gov/appeals.ht XXXXX XXXXX and XXXXX W. v. XXXXX School District

DOCUMENTATION ENTERED INTO RECORD FEBRUARY 1, 2012

2. Committee Consent for Evaluation Joint 5/04/10, 1 p. (504 pages; DOE)

3. Committee Meeting Notice to Parent Joint 5/18/10, 1 p. 4 Psycho-Educational Report Joint 5/25/10, 5 pp. 5 Initial Social History Joint 5/10/10, 3 pp. 6 Pediatric Neurological Assessment Joint 4/26/10, 2 pp. 7 Student State Test Scores Detail Joint 5/19/10, 1 p. 8 Student Period Attendance Detail Joint 6/14/10, 3 pp. 9 Health Form Report and Immunization Record Joint 6/11/10, 2 pp. (504 pages; DOE)

10. Meeting Attendance Sheet Joint 6/14/10, 1 p. (504 pages; DOE)

11. Accommodation Plan 2010-2011 Joint 6/14/10, 2 pp. (504 pages; DOE)

12. Committee Recommendation for Services and Consent Joint 6/28/10, 1 p. 13 E-mail between XXXXX and XXXXX Joint 7/29/10, 1 p. (504 pages; DOE)

14. Committee Signed Consent for Accommodation Joint 7/29/10, 1 p. 15 E-mail string between XXXXX and XXXXX XXXXX Joint 12/13/10, 1 p. (504 pages; DOE)

16. Committee Meeting Notice to Parent Joint 12/13/10, 1 p. 17 E-mail string between XXXXX and XXXXX Joint 12/13/10 and 12/14/10, 2 pp. 19 E-mail string between XXXXX and A. XXXXX Joint 1/28/11, 1 p. 20 E-mail between N. Phillips and XXXXX & L. Laveccgia Joint 3/01/11, 1 p. 20A XXXXX School Request for Release of Academic Records Joint 2/28/11, 1 p. 20B Fax Transmittal with attached 504 Accommodation Plan and Joint Psycho-Educational Report 3/01/11, 9 pp. 21 Medical Exam Report from XXXXX XXXXX Engel Joint 11/22/10, 3 pp. 22 Medical Exam Report from XXXXX XXXXX XXXXX Joint 3/06/11, 5 pp. 23 E-mail string between XXXXX and XXXXX Joint 3/15/11, 1 p. 24 E-mail string between XXXXX and XXXXX Joint 3/25/11, 1 p. 25 Email string between XXXXX, and T. Cavanagh and between T. Cavanagh Joint and XXXXX 3/29/11, 3/31/11, 4/04/11, 2 pp. 26 E-mail string between XXXXX and XXXXX XXXXX and XXXXX Joint 4/04/11, 1 p. 27 E-mail string between XXXXX and XXXXX Joint 4/06/11 and 4/07/11, 2 pp. 28 E-mail from XXXXX to XXXXX, XXXXX, XXXXX and Joint (504 pages; DOE)

XXXXX XXXXX

4/12/11, 2 pp.

29 E-mail string between C. XXXXX and XXXXX Joint

4/12/11, 2 pp.

30 Meeting Notice 504 Committee Joint

4/12/11, 1 p.

31 E-mail string between K. XXXXX and XXXXX Joint

4/12/11 and 4/13/11, 2 pp.

32 Notice of Referral to the CSE and Request for Consent Joint

4/13/11, 3 pp.

33 CSE Consent for Referral and Evaluation Joint

4/15/11, 1 p.

34 504 Committee Meeting Attendance Sheet Joint

4/15/11, 1 p.

35 504 Accommodation Plan, 2010-2011 Joint

4/15/11, 2 pp.

36 E-mail string between XXXXX and XXXXX Joint

4/15/11, 1 p.

37 Request for Release of Information to XXXXX XXXXX XXXXX XXXXX

Joint

4/15/11, 1 p.

38 E-mail string between XXXXX and XXXXX XXXXX , and attached medical

Joint

note from XXXXX XXXXX XXXXX

4/27/11 and 4/28/11, 2 pp.

39 CSE Referral Form Joint

4/29/11, 7 pp.

40 E-mail string between XXXXX and XXXXX , with attached social Joint history update

5/02/11, 3 pp.

41 504 Committee Recommendation for Continuation of Services Joint

5/02/11, 1 p.

42 CSE Meeting Notice to Parent Joint

5/05/11, 1 p.

43 Psychiatric Consultation Summary Joint

5/05/11, 3 pp.

44 CSE Meeting Classroom Teacher Reports for meeting date Joint

5/25/11, 6 pp.

45 CSE Meeting Attendance Sheet Joint

5/25/11, 1 p.

46 E-mail between XXXXX and XXXXX XXXXX

Joint

5/26/11, 1 p.

47 E-mail between XXXXX and XXXXX XXXXX

Joint

6/09/11, 1 p.

48 CSE Meeting Notice Joint

8/16/11, 2 pp.

49 E-mails between XXXXX and XXXXX Joint

8/17/11, 2 pp.

50 E-mail between XXXXX and XXXXX Joint

8/18/11, 1 p.

50A Medical Report from XXXXX XXXXX XXXXX

Joint

8/11/11, 2 pp.

50B Medical Report from XXXXX XXXXX XXXXX XXXXX

Joint

8/10/11, 1 p. 51 E-mail between XXXXX and XXXXX Joint

8/24/11, 1 p.

51A Medical Report from XXXXX XXXXX XXXXX XXXXX to CSE

Joint

8/19/11, 2 pp.

52 CSE Meeting Attendance Sheet Joint

8/26/11, 1 p.

53 Draft IEP for 2011- 2012 School Year Joint

8/26/11, 10 pp.

54 Letter from XXXXX and XXXXX Joint

8/30/11, 1 p.

55 Letter from K. XXXXX to XXXXX Joint

10/03/11, 2 pp.

56 E-mail between XXXXX and XXXXX , with attached signed Consent for Joint

Release of Information

10/17/11, 2 pp.

57 Letter from XXXXX to XXXXX Joint

10/21/11, 2 pp.

58 Letter from XXXXX to XXXXX Joint

10/26/11, 4 pp.

59 Letter from XXXXX to XXXXX Joint

11/02/11, 1 p.

60 Letter from XXXXX to XXXXX Joint

11/02/11, 1 p.

61 Letter from XXXXX to XXXXX Joint

11/02/11, 1 p.

62 E-mail between XXXXX and XXXXX , with attached Consent to Joint

Release of Information

11/04/11, 2 pp.

63 Letter from XXXXX to XXXXX Joint

12/06/11, 3 pp.

64 Letter from XXXXX to XXXXX Joint

1/19/12, 1 p.

65 2008-2009 student daily and period attendance record Joint

3 pp.

66 2009-2010 student daily and period attendance record Joint

5 pp.

67 2010-2011 student daily and period attendance record Joint

8 pp.

68 2008-2009 final report card Joint

1 p.

69 2009-2010 final report card Joint

2 pp.

70 2010-2011 final report card Joint

1 p.

1 504 Referral Form District

5/05/10, 7 pp.

2 504 Meeting Classroom Teacher Reports for mtg District

6/14/10, 9 pp.

3 Dental Assessment District

1/21/10, 1 p.

4 Student 4th Quarter 3 week progress report District

1 p.

5 Selected Testing Protocols from Psycho-Educational Report District

5/25/10

5A Behavior Assessment System for Children, Second Edition (BASC-2), District

Self Report-Adolescent

5/26/10, 7 pp.

5B BASC-2 Teacher Rating Scales District

Undated, 5 pp.

5C Sentence Completion Test District

Undated, 2 pp.

6 E-mail between XXXXX and XXXXX District

12/06/10, 1 p.

7 E-mail string between XXXXX and XXXXX District

12/13/10 and 1/3/11, 2 pp.

8 E-mails between XXXXX and XXXXX et al. with attachment District

12/20/10, 3 pp.

9 E-mail between XXXXX and XXXXX XXXXX et al. District

12/23/10, 1 p.

10 E-mail between XXXXX and XXXXX et al. District

1/13/11, 1 p.

11 Correspondence between XXXXX and XXXXX District

1/23/11, 1 p.

11A The XXXXX School Application for Admission School Report and Release District

Form

2 pp.

11B XXXXX School Transcript and Testing Release Form District

1 p.

11C XXXXX Preparatory School Transcript and Testing Release Form District

1 p.

12 E-mail between XXXXX and District

1/24/11, 1 p.

13 Medical Exam Report from XXXXX XXXXX XXXXX

District

2/03/11, 2 pp.

14 504 Committee Meeting Notice to Parent marked “Cancelled” District

4/06/11, 1 p.

15 E-mail string between XXXXX , XXXXX XXXXX and XXXXX

District

4/14/11, 1 p.

16 IST Meeting Minutes District

3/18/11 and 4/18/11, 1 p.

17 E-mail between XXXXX , XXXXX and XXXXX XXXXX , with attached CSE

District

Referral Form

4/18/11, 3 pp.

18 E-mail between XXXXX and XXXXX District

4/26/11, 1 p.

19 E-mail between XXXXX , XXXXX XXXXX and XXXXX

District

4/27/11, 1 p.

20 E-mail string between XXXXX and XXXXX District

5/04/11, 1 p.

21 E-mail string between XXXXX and XXXXX District

5/05/11, 2 pp.

22 E-mail between XXXXX and XXXXX District

5/06/11, 1 p.

23 E-mail between XXXXX , XXXXX , and XXXXX XXXXX

District

5/09/11, 1 p. 24 E-mail string between XXXXX and XXXXX District

5/12/11 and 5/20/11, 2 pp.

25 Note from J. XXXXX to XXXXX XXXXX

District

5/25/11, 1 p.

26 E-mail string between XXXXX , XXXXX XXXXX and XXXXX

District

5/26/11

27 E-mail string between XXXXX , XXXXX XXXXX , and XXXXX

District

5/26/11 and 5/27/11, 2 pp.

28 E-mail between XXXXX and XXXXX District

6/01/11, 1 p.

29 E-mail between XXXXX , XXXXX XXXXX and XXXXX

District

6/07/11, 1 p.

30 Minutes from CSE Meetings District

5/25/11 and 8/26/11, 1 p. 31 E-mail between XXXXX and XXXXX District

11/08/11, 1 p. 32 Student Test Scores Detail District

1 p. 33 2009-2010 Home Instruction/Tutoring Request Form District

1 p. 35 E-mail between XXXXX and XXXXX XXXXX

District

4/22/10, 1 p.

36 2010-2011 Health Office Visit Report District

1 p.

A XXXXX School District policy information Parent

3/12/08, 1 p.

C Affidavit of Ms. XXXXX with attachments Parent

1/13/12, 14 pp.

DOCUMENTATION ENTERED INTO RECORD FEBRUARY 7, 2012

34 2010-2011 Home Instruction/Tutoring Request Form District

15 pp.

D XXXXX Central School District Policy XXXXX , Anti-Bullying and Parent

Harassment

10/13/10, 3 pp.

E XXXXX Central School District Policy XXXXX , Programs for Students Parent with Disabilities

12/10/08, 1 p.

F XXXXX Central School District Policy XXXXX , Provision of Special Parent

Education Services in the Least Restrictive Environment

12/10/08, 1 p.

G XXXXX Central School District Policy XXXXX , School-Wide Parent

Pre-Referral Approaches and Interventions

12/10/08, 1 p.

H XXXXX Central School District Policy XXXXX , Confidentiality and Parent

Access to Individualized Education Programs

12/10/08, 2 pp.

I XXXXX Central School District Policy XXXX , Instructional Parent

Arrangements, Homebound Instruction

12/10/08, 2 pp.

J XXXXX Central School District Policy XXXXX , Student Attendance, Parent

Student Attendance Policy

11/12/03, 4 pp.

K Certificate, 2006, IBM’s Family Science Saturdays Science Academy Parent

1 p.

L Sept. 2008 – “ XXXXX ” Essay by XXXXX XXXXX

Parent

2 pp.

M June 2008 – Fifth Grade Report Card for XXXXX E. XXXXX

Parent

5 pp.

N June 2008 – XXXXX Pull-Out Progress Report Parent

1 pp.

O Correspondence from XXXXX to XXXXX & XXXXX XXXXX Parent

7/23/08, 1 p.

P New York State Education Department, Parent Report, 2008-09 School Year Parent

2 pp.

Q Certificate 2008-2009; Johns Hopkins University Center for Talented Youth Parent

Distance Education Program

1 p.

R Correspondence from XXXXX to Parents of XXXXX XXXXX

Parent

8/26/09, 1 p.

S Correspondence from XXXXX to Parents of XXXXX XXXXX

Parent

9/21/09, 1 p,

T E-Mail Correspondence between XXXXX XXXXX and XXXXX XXXXX

Parent

11/1/10, 2 pp.

U Correspondence from XXXXX to XXXXX & XXXXX XXXXX Parent

11/10/10, 1 p.

V E-Mail Correspondence between XXXXX XXXXX and XXXXX XXXXX

Parent

11/19/10, 1 p.

W E-Mail Correspondence between XXXXX XXXXX and XXXXX Parent

12/13/10, 1 p.

X E-Mail Correspondence between XXXXX XXXXX and XXXXX XXXXX

Parent

12/15/10, 2 pp.

Y E-Mail Correspondence between XXXXX and XXXXX Parent

12/23/10, 1 p.

AA E-Mail Correspondence between XXXXX XXXXX and XXXXX Parent

1/24/11, 2 pp.

BB D XXXXX XXXXX XXXXX CV

Parent

12 pp.

CC E-Mail Correspondence between XXXXX XXXXX and Jonathan Brown Parent

2/18/11, 1 p.

DD E-Mail Correspondence between XXXXX XXXXX and XXXXX , Parent

Jonathan Brown

3/2/11, 2 pp.

EE E-Mail Correspondence from XXXXX to XXXXX XXXXX and Parent

XXXXX

3/3/11, 1 p.

FF E-Mail Correspondence between XXXXX and XXXXX Parent

3/3/11, 1 p.

GG E-Mail Correspondence between XXXXX XXXXX and XXXXX Parent

3/3/11, 1 p.

LL The XXXXX School, General Information and Course Description Parent

24 pp.

MM XXXXX School, General Accommodation Plan for XXXXX XXXXX

Parent

8/30/11, 1 p.

NN E-Mail Correspondence between XXXXX XXXXX and XXXXX E. XXXXX

Parent

9/5/11, 1 p.

OO Daily Attendance Record, XXXXX School Parent

1/12/12, 1 p.

PP Report Card, 1st marking Period Parent

11/7/11, 3 pp.

QQ Course Selection, XXXXX XXXXX , XXXXX School, 2011-2012

Parent

1 p.

RR Correspondence from XXXXX to parents Parent

12/15/11, 3 pp.

DOCUMENTATION ENTERED INTO RECORD FEBRUARY 15, 2012

18 CSE Meeting Classroom Teacher Reports Joint

1/05/11, 9 pp.

DOCUMENTATION ENTERED INTO RECORD FEBRUARY 16, 2012

Z Curriculum Vitae of XXXXX XXXXX XXXXX XXXXX

Parent

6 pp.

BB Curriculum Vitae of XXXXX XXXXX XXXXX , PH.D

Parent

11 pp. (replacing Parent Ex. BB entered on 2/7/12)

DOCUMENTATION ENTERED INTO RECORD MARCH 7, 2012

42 E-mail string among XXXXX , XXXXX , and XXXXX District

6/09/10- 6/10/10m 4 pp.

43 E-mail from XXXXX to XXXXX District

4/23/10, 1 p.

44 E-mail string between XXXXX and XXXXX District

4/29/10, 2 pp.

45 E-mail string between XXXXX and XXXXX District

5/04/10, 2 pp.

46 E-mail string between XXXXX and XXXXX District

10/22/10 and 11/03/10 , 3 pp.

47 E-mail string between XXXXX and XXXXX District

11/12/10, 3 pp.

48 E-mail string between XXXXX and XXXXX District

11/19/10, 2 pp.

49 E-mail string among XXXXX , J. XXXXX , and W. XXXXX District

12/15/10, 2 pp.

50 Email string between XXXXX and XXXXX District

12/09/10, 2 pp.

DOCUMENTATION ENTERED INTO RECORD MARCH 8, 2012

HH Self-Report of Personality Report. Behavior Assessment System for Children, Parent

Second Edition, Test of XXXXX E. XXXXX

2/13/12, 14 pp.

II Application (Office Version). XXXXX E. XXXXX to XXXXX School

Parent

3/5/11, 4 pp.

JJ Memo: XXXXX XXXXX

Parent

2/10/12, 1 p.

KK E-Mail Correspondence between XXXXX XXXXX and XXXXX XXXXX

Parent

11/15/11, 2 pp.

SS E-Mail Correspondence between XXXXX and XXXXX , et al Parent

11/14/11, 3 pp.

TT Report Card 2011/2012/Second Marking Period of XXXXX E XXXXX Parent

2/2/12, 3 pp.

UU E-Mail Correspondence between XXXXX XXXXX and XXXXX XXXXX

Parent

7/24/11, 1 p.

DOCUMENTATION ENTERED INTO RECORD MARCH 20, 2012

B XXXXX Enrollment Contract Parent

4/11/11, 1 p.

VV E-Mail Message capturing E-Mail Correspondence between XXXXX XXXXX and

Parent

XXXXX XXXXX Re: Confidential Records: XXXXX XXXXX

9/2/11 and 2/28/12, 1 pp.

WW E-Mail Message capturing E-Mail Correspondence between XXXXX XXXXX and

Parent

XXXXX XXXXX Re: Confidential Records: XXXXX XXXXX

9/11/11 and 2/28/12, 1 pp.

XX E-Mail correspondence between XXXXX and XXXXX , et al. regarding Parent

XXXXX

1/10/12, 1 p.

ZZ Composition Book Parent

Undated, 14 pp.

AAA Pages of a Calendar of Assignments from a Parent Portal Parent

2/29/12, 16 pp. BBB Samples of school work of XXXXX XXXXX

Parent

Undated or October, 2011- February, 2012, 31 pp.

CCC XXXXX School summary of debit transactions Parent

7/1/11- 2/9/12, 2 pp.

DOCUMENTATION ENTERED INTO RECORD MARCH 21, 2012

51 English Teacher Reference for XXXXX for the XXXXX School Application District

3/19/11, 3 pp.

52 Mathematics Teacher Reference for XXXXX for the XXXXX School District

Application

3/14/11, 3 pp.

53 Letter from XXXXX to M/ XXXXX District

3/22/11, 1 p.

54 Email string between XXXXX and XXXXX and a document District

2/24/11 and 3/29/11, 2/8/12, 4 pp.

55 Email from XXXXX to A. Edwards and a document District

5/23/11 and 2/8/12, 2 pp.

56 E-mail string between A. Edwards and XXXXX and a document District

7/12/1l and 7/13/11, 2/8/12, 3 pp.

37 XXXXX XXXXX Psycho-Educational Report, cover fax sheet from XXXXX

District

5/18 and 5/25, 2010 and 5/20/11, 6 pp.

VI Parent Memorandum of Law Regarding Confidentiality and Affirmation Impartial Hearing with Exhibits Officer

1/6/12, 33 pp.

VII District memorandum of Law in Opposition to the Parents' Motion Impartial Hearing

Regarding Confidentiality Including a Cover Letter and Correction Officer

1/20/12 and 1/23/12, 13 pp.

VIII Parent's Letter Reply Brief Regarding the Confidentiality Motion Impartial Hearing

1/25/12, 4 pp. Officer

IX Impartial Hearing Officer Decision and Interim Order on Parents' Impartial Hearing Request for Enforcement of I.D.E.A. Confidentiality Provisions Officer

1/30/12, 3 pp.

X Parties' Waivers of the Resolution Period Impartial Hearing

1/31/12, 2 pp. Officer

XI Subpoenas Duces Tecum and One for Testimony from a Witness Impartial Hearing

2/1/12 and 2/28/12, 11 pp. Officer

XII E-mail Threads Regarding the Scheduling of the Impartial Hearing Impartial Hearing

Compliance Date Extension Requests and Decisions on those Officer

Extension Requests

12/23/11- 3/16/12, 19 pp.

DOCUMENTATION ENTERED INTO RECORD APRIL 2, 2012

71 Stipulation of Confidentiality Joint

4/2/12, 4 pp.

38 Redacted Handwritten notes from XXXXX XXXXX XXXXX

District

5/18/11- 7/27/11, 15 pp.

39 New Redacted Version of School District 39, Chronological Summary District

February, 2008- 4/12/11, 6 pp.

40 Redacted Progress Notes from the XXXXX XXXXX Center District

3/21/11, 1 p.

41 Redacted Document of XXXXX XXXXX XXXXX notes

District

4/11/11 and 8/25/11, 12 pp.

YY XXXXX XXXXX 's Medical File

Parent

68 pp.

XIII E-mails between IHO and parents regarding extension of compliance Impartial Hearing date and Decision on the Extension Request Officer

3/12/12 and 3/16/12, 3 pp.

ADDITIONAL DOCUMENTATION ENTERED INTO RECORD MAY 16, 2012

XIV E-mails between the parties and IHO regarding requested changes Impartial Hearing to transcript including original list of parents' proposed changes Officer

4/19/12 -4/27/12, 13 pp.

XV E-mails between IHO and parties, including letter from XXXXX XXXXX XXXXX

Impartial Hearing 4/30/12 and 5/1/12, 4/28/12, 4 pp.

Officer

XVI E-mail from IHO to parties regarding corrections to transcript Impartial Hearing

5/2/12, 1 p. Officer

XVII Certified Errata Sheet with cover e-mail from Catherine Kunkel Impartial Hearing

5/3/12, 5 pp. Officer

XVIII - Parents Legal Memorandum Impartial Hearing

May 2, 2012, 71 pp. Officer

XIX District's Legal Memorandum Impartial Hearing

May 2, 2012, 47 pp. Officer

XX E-mail from XXXXX to Lana Flame and affirmation of XXXXX Impartial

Hearing May 4, 2012, 4 pp. Officer

XXI Letter from XXXXX to Lana Flame in response to parents' request Impartial Hearing for transcript changes Officer

May 4, 2012 and May 7, 2012, 2 pp.

XXII Letter from XXXXX to Lana Flame with application to disregard Impartial Hearing parents' post-hearing legal memorandum Officer

May 7, 2012, 2 pp.

XXIII Letter from XXXXX to Lana Flame in response to district's application Impartial Hearing to disregard parents' post-hearing legal memorandum Officer

May 8, 2012, 5 pp.

XXIV IHO Flame letter to parties Impartial Hearing

May 9, 2012, 1p. Officer

XXV E-mails between IHO and parties related to additional exhibits and Impartial Hearing confirmation of parties' request to extend compliance date Officer

May 11, 2012, 6 pp.

XXVI Decisions on parties' requests to extend compliance date Impartial Hearing

May 14, 2012 and May 16, 2012. 2 pp. Officer

---

Footnotes

[2] Ms. XXXXX testified that her name is included in erro XXXXX She did not attend the June 14, 2010, Section 504 meeting. T XXXXX 467.

[3] Ms. XXXXX testified that since the student already had dropped Enriched English after the first quarter, her understanding was that it was necessary to determine whether he should drop French in the context of a 504 meeting. T XXXXX 1316.

[4] Ms. XXXXX testified that the IST consisted of the assistant principal, the counselors, the school nurse, the school social worker, and the school psychologist. T XXXXX 1301-1302.

[5] XXXXX XXXXX testified that the Section 504 meeting scheduled for May 31, 2011, was canceled because the parent subsequently referred the student to the CSE. T XXXXX 484-485.

[6] Ms. XXXXX and the student's mother both recalled that XXXXX XXXXX XXXXX was designated to provide counseling during the 504 meeting. T XXXXX 491-492, XXXXX XXXXX XXXXX did not understand from the discussion at the meeting that he would be the counselor and testified that Ms. XXXXX mentioned to him that he would be subsequently. T XXXXX 746.

[9] It is noted that on the social history submitted by the parent in relation to the initial 504 referral, the parent indicated that she did not want to further discuss the CSE process. Although the 504 Committee did have XXXXX XXXXX XXXXX 's findings on the BASC-2.

[10] While the parent sought the school psychologist's help to reach out to her son, once her son expressed resistance to the idea, the parent promptly contacted the school psychologist and told him that she did not think that the talk was necessary. Dist. Ex. 6. Additionally, while the parent expressed urgency in a December 14, 2010, request for a 504 meeting, when the District offered an almost immediate date, the parent opted for a meeting date 2-3 weeks late XXXXX , and instead chose to again have a more immediate meeting with the student's teachers to address the student's missed school work T XXXXX 1893-1894.

[11] The fact that on November 2, 2010, XXXXX XXXXX Jacobson noted to XXXXX XXXXX XXXXX that the student was receiving accommodations in school “which are helping at least to mitigate some of the problems with missing school” did not mean that the 504 plan was sufficiently addressing the student's needs. Parent Ex. YY-65

[12] The parent argues that 8 NYCRR Sec. 200.4(b)(7)(ii) should not be considered since it is not identified as an exception within Sec. 200.4(b)(1), which does expressly identify Sec. 200.4(b)(7)(i). The plain meaning of 8 NYCRR Sec.