Impartial Hearing Decision

X In the Matter of a Due Process Hearing under the Individuals With Disabilities Education Improvement Act (the “IDEIA”), Consolidated 20 U.S.C. Section 1400 et. seq., and Section 4404 of the New Due Process York State Education Law, and Section 504 of the Proceedings Rehabilitation Act between [Student], by his parents, [Redacted] and [Redacted], IHRS Case

Petitioners, No. [XXXXX] -against- [Redacted] SCHOOL

DISTRICT,

Respondent. X In the Matter of a Due Process Hearing under the Individuals With Disabilities Education Improvement Act (the “IDEIA”), 20 U.S.C. Section 1400 et. seq., and Section 4404 of the New York State Education Law, and Section 504 of the Rehabilitation Act between [Redacted] SCHOOL

DISTRICT,

Petitioner, -against- [Student], by his parents, [Redacted] and [Redacted], Respondents. X

FINDINGS OF FACT AND DECISION

Mindy G. Wolman, Esq.

Impartial Hearing Officer

Record Close Date: November 8, 2013

Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

On February 26, 2013, the parents (the “Parents”) of [Student] (hereinafter “[Student]” or the “Student”) filed a request for an impartial hearing (the “Due Process Complaint” or “Complaint”) against the [Redacted] School District (the “District”) under the Individuals with Disabilities Education Improvement Act (the "IDEIA," also referred to at the “IDEA”), 20 U.S.C. §1415(f)(1), §4404 of the New York State Education Law (the “NYS Education Law”), and §504 of the Rehabilitation Act (“Section 504") (IHO Ex. I). I was appointed as hearing officer on February 27, 2013.

On March 13, 2013, the District challenged the sufficiency of the due process complaint and moved to dismiss the due process complaint (IHO Ex. II). On March 19, 2013, I issued a decision in which I found the due process complaint to be sufficient and denied the District’s motion to dismiss (IHO Ex. VI).

On May 30, 2013, the District filed a due process complaint (the “District’s Complaint”) against the Parents and Student (IHO Ex. IV). The District filed a motion to consolidate the two proceedings on June 7, 2013 (IHO Ex. VII), and the motion to consolidate was granted on June 12, 2013 (IHO Ex. VIII; see also IHO Ex. IX). The District’s response to the Due Process Complaint was filed on March 7, 2013 (IHO Ex. III), and the Parents’ response to the District’s Complaint was filed on June 18, 2013 (IHO Ex. V).

The compliance date for issuing a decision in this proceeding was extended to November 12, 2013 (see IHO Exs. XIII, XIV, XV, XVI, and XVIII). 1 In lieu of closing statements on the record, the parties submitted post-hearing memoranda of law (IHO Exs. XVIII and XIX).

A pre-hearing conference was held in this case on April 8, 2013, and substantive hearings went forward on June 27, 2013, July 25, 2013, August 2, 2013, August 6, 2013, August 7, 2013, August 13, 2013, August 14, 2013, and August 30, 2013. Lists of the persons who attended the The final compliance date extension in this case extended the compliance date for issuing a decision to November 10, 2013 (IHO Ex. XVII). However, November 10, 2013 is a Sunday and November 11, 2013 is a public holiday (Veteran’s Day). As such, pursuant to the NYS General Construction Law §25-A, the actual extended compliance day for issuing a decision in this proceeding is November 12, 2013. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District hearing and the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

[Student] is a 17 year old male student who is not classified as a student with a disability. The Student is diagnosed with [Redacted] (“[Redacted]”), [Redacted], and [Redacted] Disorder (“[Redacted]”). He has a history of difficulties with [Redacted] and [Redacted] functioning (P. Ex.V at 14). According to the testimony and documentary evidence presented at this hearing, he has a several other diagnoses: [Redacted] disorder with prominent [Redacted](D. Ex. 19), [Redacted] (P. Ex. N at 2), generalized [Redacted] disorder (P. Ex. Q at 4), [Redacted] Disorder NOS with generalized and [Redacted] features (P. Ex. V at 13), [Redacted] Disorder (P. Ex.V at 13), Possible [Redacted] Disorder (P. Ex. V at 13), [Redacted] problems (P. Ex. V at 14), [Redacted] limitations (P. Ex. V at 15), and [Redacted] (P. Ex. V. at 15). A who evaluated the Student also described him as having “mild to moderate [Redacted]” (Tr. at 1044). The Student was described as having a “recent exacerbation of [Redacted]) (D. Ex. 19) and as being “[Redacted]” (Tr. at 1044). According to a who evaluated [Student], the Student needs to improve [Redacted] skills, and the Parents would benefit from [Redacted] ([Redacted] Disorder) parent training in order to manage some of the behavioral difficulties they were experiencing with the Student at home (P. Ex. V. at 15).

The ( ) who began treating the Student in November of 2011 reported that he was diagnosed with “a severe form” of [Redacted], and that he had secondary symptoms which “included but are not limited to [Redacted], [Redacted] disorder, [Redacted]s syndrome, clinical [Redacted], and [Redacted]” (D. Ex. 22 at 2).

As of the beginning of the 2011-2012 school year, the Student was enrolled in and attending the [Redacted] High School (the “High School”). His class schedule included honors classes and an AP (Advanced Placement) class. The Student experienced a marked increase in [Redacted] during the fall of the 2011-2012 school year. In order to help him cope with [Redacted] issues, the High School provided him with a “frustration pass,” which enabled him to leave class and go to the Guidance Office whenever he felt that he needed to do so. There were three major incidents at school involving [Redacted] or “[Redacted] attacks” which resulted in the Student being unable to function in school and Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District needing to be taken home. In addition, the Student was having difficulty remaining in school and frequently went to the Guidance Office or School Nurse’s Office to contact his mother. His mother would either convince him to stay in school or come to the school to take him home. In addition, the Parents reported increasing difficulty in getting him to wake up, get out of bed, and go to school.

There were a series of meetings at school in October and November of 2011, after which the Student was placed on home instruction. The Parents referred the Student to the Section 504 Committee on December 7, 2011 (P. Ex. 18), and a Section 504 meeting was held on February 2, 2012. The Section 504 Committee did not find the Student eligible for Section 504 accommodations at that time; instead, it tabled the meeting pending the submission of additional documentation (D. Ex. 20). The Parents subsequently submitted a letter from the who had been treating the Student and who had attended the Section 504 meeting. The Hearing Record includes correspondence and testimony regarding the scheduling of another Section 504 meeting. A Section 504 meeting was ultimately scheduled for June 2012. However, the Parents informed the District that they would not be going forward with the Section 504 meeting and would be referring the Student for special education instead (Tr. at 747). The Section 504 meeting was cancelled (Tr. at 747), and the Parents referred the Student to the Committee on Special Education (“CSE”) on June 20, 2012 (D. Ex. 34).

On June 29, 2012, the Student’s mother signed the District’s consent for evaluation form (D. Ex. 34 at 35). It included consent for the following evaluations: social history, evaluation, physical examination, classroom observation, and evaluation. On July 9, 2012 (which was prior to the completion of the CSE’s evaluation of the Student and prior to the CSE’s meeting to consider the evaluations and make eligibility and program recommendations), the Parent’s hand delivered a ten-day notice of their intent to unilaterally place the Student in a private school (D. Ex. 34 at 36). According to the date stamps on the two documents, the Parents’ consent for evaluation was received the day after the ten-day unilateral placement notice. It is clear that, at some point, the Parents withdrew their consent for a evaluation. What is not clear, is when this occurred (although it is apparent that consent was withdrawn a some point in between the signing of the consent on June 29, 2012 and the CSE meeting on September 6, 2012). The Parents unilaterally placed the Student at Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District [Redacted] Academy [Redacted](“[Redacted]”) for the 2012-2013 school year. The Student began to attend [Redacted] on September 4, 2012 (IHO Ex. I at 7).

The CSE convened a meeting on September 6, 2012 and found that the Student was ineligible for classification as a student with a disability (D. Ex. 36). The CSE convened another meeting on December 7, 2012, at which time it determined that it would reconvene after CSE staff had the opportunity to review the evaluation (which had been performed by Dr. [Redacted]) that was submitted to the CSE at the December 7 meeting (D. Ex. 37). The CSE determined that it needed to have Dr. [Redacted]’s participation at a CSE meeting in order to fully understand and consider his report and recommendations. As such, it sought his participation (D. Exs. 44, 46, and 48). Dr. [Redacted] refused to participate in the CSE meeting because the Parents had concluded that his attendance was not required or necessary (D. Ex. at 47). The CSE reconvened on May 3, 2013, and once again found that the Student did not meet the criteria for classification as a student with a disability under the IDEA (D. Ex. 38).

The Due Process complaint challenges the CSE’s determination that the Student was not eligible for classification as a student with a disability and seeks reimbursement for the tuition and transportation costs for the Student’s unilateral placement at the 2012-2013 [Redacted] placement. The Due Process Complaint also raises issues regarding the manner in which the District’s Section 504 Committee (the “504 Committee”) handled the Parents’ 2011-2012 request for accommodations under Section 504. The Parents maintain that the District failed to offer the Student a free appropriate public education (“FAPE”) and seek relief under the IDEIA and the NYS Education Law. The Parents do not seek any relief under Section 504. The District’s Complaint seeks an order permitting the District to override the Parents’ refusal to consent to a evaluation of the Student, authorizing the District to obtain a evaluation without parental consent, and directing the Parents to produce the Student for evaluation by a of the District’s choosing. As noted above, the two proceedings have been consolidated. The District’s Position

The District submitted an extensive documentary evidence package at the hearing. In addition, it Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District presented the testimony of the following individuals: [Redacted] (guidance counselor), [Redacted], Ed.D. (school psychologist), [Redacted] (guidance counselor), [Redacted] (Student Assistance Counselor), [Redacted]F (Assistant Principal), [Redacted] Ed.D. (Principal), [Redacted] (school psychologist), [Redacted] (school nurse), [Redacted] (District Superintendent), [Redacted] (Director, Secondary Special Education), and [Redacted] (school psychologist).

The District maintains that it complied with its IDEA obligations with respect to the identification, evaluation, and classification of the Student, and that procedural inadequacies, if any, were de minimus and did not constitute a denial of FAPE. The District asserts that, based on the information that was available to the CSE, the Student was not eligible for classification as a student with a disability. The District rejects the Parents’ contention that the Student’s [Redacted]’s diagnosis automatically makes him eligible for classification as a student with a disability having an . The District does not dispute the Student’s [Redacted]’s diagnosis. However, it asserts that the Student is not eligible for classification as a student with a disability because he is not in need of special education services or related services. The District also acknowledges that the Student has [Redacted] and [Redacted]. However, it notes that the Student performed well academically despite these diagnoses and asserts that the District attempted to address the Student’s stress and [Redacted] in school (providing the frustration pass, offering , etc.). The District also placed the Student on home instruction when requested to do by the Parents. The District also notes that neither the Parents nor any of the professionals who evaluated or treated the Student requested, or cited the need for, any form of special education instruction or special services. Instead, the Parents and various professionals sought accommodations for the Student. The District maintains that a need for accommodations does not constitute a need for special education services, and therefore does not warrant classification as a student with a disability. The District maintains that the CSE’s determination that the Student was ineligible for classification as a student with a disability was correct based on the information that was available to the CSE at the time that the ineligibility determination was made.

The District also asserts that even in the event that it is found to have failed to provide the Student with a FAPE, the Parents are not entitled to tuition reimbursement because [Redacted] was not Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District an appropriate placement for the Student and because equitable factors preclude tuition reimbursement. The District asserts that the Parents did not meet their burden of proving that [Redacted] provided the Student with a program and services specially designed to meet the Student’s unique needs. The school does not offer special education instruction or related services. [Redacted] is an uncertified private school that cannot grant high school diplomas. It provides only one-on-one instruction (which the District asserts is extremely restrictive and inadequate for the Student). The District asserts that [Redacted] does not provide the Student with any opportunities to interact with non-disabled peers. The District further notes that there is no evidence that the Student requires anything other than general education instruction.

In addition, the District asserts that equitable factors preclude tuition reimbursement based on the Parents’ unreasonable actions and failure to cooperate with the CSE. The District cites the Parents’ consistent and repeated refusal to consent to a evaluation, as well as their consistent and repeated refusal to share evaluation reports and data from the Student’s two previous evaluations. In addition, the District notes that the Parents began investigating private school placements before they even referred the Student to the CSE, and that they advised the CSE of their intent to unilaterally place the Student at [Redacted] before the District had even had the opportunity to evaluate the Student. warrants denial of their reimbursement claim. The District maintains that the Parents’ actions were unreasonable, and that tuition reimbursement should be denied on equitable grounds.

With respect to the Parents’ request for reimbursement for the cost of transportation to and from [Redacted], the District maintains that they are not entitled to transportation because [Redacted] is more than fifteen miles from the Student’s home.

The District also maintains that a evaluation was, and continues to be, necessary in order to determine whether or not the Student is eligible for special education and related services, and that the Parents’ refusal to consent to a evaluation prevented the CSE from performing and considering an evaluation that was “sufficiently comprehensive.” It asserts that a current evaluation is necessary to determine whether or not the Student should be classified as a student with a Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District disability at this time. The District notes that a evaluation differs from a evaluation, and that a evaluation is necessary to provide the CSE with the information that it needs regarding the extent to which the Student’s social/emotional status and diagnoses impact on his ability to benefit from instruction and function in an educational setting. It further asserts that Dr. [Redacted]’s 2011 evaluation (which was first provided to the District on May 15, 2013, in the form of Dr. [Redacted]’s handwritten file notes) is too out of date to accurately describe the Student’s current functioning. The evaluation was performed when the Student was “in crisis.” The Student has (reportedly) been out of crisis since February of 2012. The District therefore asserts that a new evaluation is necessary “to enable the CSE to determine whether [Student] has a disability within the meaning of the IDEA and requires special education” (IHO Ex. XIX at 29).

The District requests that I deny the Parents’ request for tuition reimbursement and for the reimbursement of transportation costs, and that I issue an order directing a evaluation of the Student. The Parents’ Position

The Parents submitted an extensive documentary evidence package at the hearing. In addition, they presented the testimony of the following individuals: [Redacted], M.D. , [Redacted],

, [Redacted] (math and science teacher from [Redacted]), and [Redacted] (the Student’s mother).

The Parents maintain that the District erred when it failed to classify the Student as a student with a disability. They maintain that they provided both the Section 504 Committee and the CSE with appropriate and sufficient information about the Student’s social/emotional needs and diagnoses. As of the time that the Section 504 meeting, the Student was already on home instruction. The Section 504 referral identified the reason for the referral as “[Redacted] disorder, [Redacted] and [Redacted] that are part of [Redacted]’s Syndrome are interfering with this ability to be in the classroom and to complete his work to the best of his ability (D. Ex.18). The Parents maintain that Ms. [Redacted], the Student’s private , provided the Section 504 Committee with appropriate information at the meeting and that all of the accommodations that she requested were necessary and appropriate for the Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

Student.

The Parents also note that the June 19, 2012 special education referral listed the two that the Student had seen, along with a list of all doctors and therapists that the Student had seen. They also note that the District’s August 2012 evaluation (D. Ex. 32) of the Student reported a processing speed index at the percentile (which is in the range), and recommended the consideration of extended time and the use of a calculator as testing accommodations. The Parents state that the evaluator also recommended “an evaluation or an evaluation ‘which may offer strategies to assist with this slow work rate and grapho-motor delay’” (IHO Ex. XVIII at 8).

The Parents take issue with the fact that the school nurse did not attend the September 2012 CSE meeting and assert that the CSE documents regarding that meeting (D. Ex. 36) contain a “number of misstatements” (IHO Ex. XVIII at 8). They also take issue with the fact that the CSE did not request permission to speak to any of the Student’s treating physicians. The Parents state “It was not until the school district subpoenaed Dr. [Redacted]’s records regarding [Student] that the District was able to see that a full evaluation had actually occurred” and “It never occurred to the Parents to ask for [Student]’s medical records” (IHO Ex. XVIII at 8-9). They also note that it was “ironic” that the CSE referred the Parents to the Section 504 committee to consider accommodations after finding that the Student was not eligible for classification under the IDEA (IHO Ex.. XVIII at 9).

The Parents argue that the Student met the criteria for classification as a student with a disability having an based on his [Redacted]’s diagnosis. [Redacted]’s is one of the conditions specifically listed under the definition in the Part 300 and Part 200 Regulations. The Parents place great weight on a State Review Officer (“SRO”) decision which they assert warrants classification under the IDEA based on psychiatric issues (SRO Appeal No. 07-086). The Parents maintain that the District’s CSE had much more information available to it than did the CSE in Appeal No. 07-086, and that the CSE should have classified the Student as a student with a disability based on the information that was available to it on September 6, 2012.

The Parents assert that the [Redacted] placement was appropriate. They note that in order to be Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District appropriate, a private school need not be approved by the State, need not employ special education teachers, and need not have an Individualized Education Program (“IEP”) for the a student. [Redacted] follows the New York State curriculum. Although [Redacted] cannot administer Regents examinations, students can make arrangements to take the examinations at their home school district. Based on the “totality of the circumstances,” they maintain that [Redacted] was appropriate. The school provides one-to-one instruction designed to meet individual student needs. The Parents note that [Redacted] accepts students who have special learning needs, [Redacted], special scheduling needs, etc. They maintain that [Redacted] provided the “educational climate” that the Student needed, that he was very comfortable at the school, and that he made educational progress. The Student took regular classes during the Fall, and honors classes during the Spring. His teachers at [Redacted] gave him extended time to complete assignments, when necessary, and worked with him to address [Redacted] and fatigue when these factors interfered with is ability to attend to instruction. As such, the Parents maintain that the school met all of the Student’s special education needs

The Parents also maintain that equitable factors support their tuition reimbursement claim. They note that they opened communications regarding the Student’s issues at the beginning of the 2011-2012 school year, and that they requested meetings and sent numerous emails to the Student’s teachers and District staff. It was the District Superintendent who initially suggested home instruction, and the Parents followed up on that suggestion by promptly filing an application for home instruction. They also requested Section 504 accommodations and participated in a Section 504 meeting. After the Section 504 meeting, the Parents followed up on the Section 504 Committees’s request for additional information by submitting a letter from Ms. [Redacted] (D. Ex. 22). They maintain that Ms. [Redacted]’s letter was a “comprehensive statement of the diagnosis [and] medications being used [and of] arguments for [Student]’s eligibility for accommodations under Section 504 (IHO Ex. VIII at 24).

The Parents also participated in the CSE’s December 7, 2012 and May 3, 2013 CSE meetings. They submitted Dr. [Redacted]’s evaluation at the December 7 meeting. They maintain that District staff spend an inordinate amount of time outside the meeting room to review Dr. [Redacted]’s evaluation on December 7, 2012, and that the Parents supplied the CSE with extensive, Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District complete, and detailed information about the Student’s condition and adequately identified his treating physicians.

The Parents assert that they “did everything possible to have this child classified so that he could receive services, both through 504 and IDEA” (IHO Ex.. XVIII at 26). The Parents assert that they are entitled to reimbursement for the cost of the [Redacted] tuition and for the cost of driving the Student to and from the school in [Redacted].

The Parents’ post-hearing memorandum of law did not specifically address the District’s request for a evaluation. However, in their response to the District’s Due Process Complaint (IHO Ex. V), the Parents deny the various allegations made by the District. They characterize the District’s request for “yet another” evaluation as “a blatant attempt to use a of their choosing for litigation purposes only” (IHO Ex. V at 7) and assert that the District’s request should be denied (IHO Ex. V at 8).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive, written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

Prior to preparing an IEP, school district’s must perform a comprehensive evaluation. A CSE Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District need not prepare an IEP for a student unless it determines, based on its review of the comprehensive evaluation, that the student is eligible for classification as a student with a disability.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). 2011-2012: Section 504/IDEA Issues

The Due Process Complaint raises several issues regarding the Parents’ 2011-2012 referral to the District’s Section 504 Committee and the manner in which the referral was handled. It also impliedly raises issues regarding 2011-2012 IDEA “child find” issues and the failure to classify the Student as a student with a disability during the 2011-2012 school year. The hearing record includes substantial documentation and testimony regarding the incidents that led up to the Student being placed on home instruction and the Parents’ Section 504 referral, as well as about the Section 504 Committee meeting, efforts to reschedule the meeting, etc. However, the Parents do not request any Section 504 or IDEA remedies for the 2011-2012 school year. As such, I need not address whether or not the District violated the Section 504 or the IDEA during the 2011-2012 school year. I note, however, that home instruction actually constitutes a Section 504 accommodation. By providing the Student with home instruction, the District did in fact provide him with Section 504 accommodations during the 2012-2012 school year. The CSE’s 2012-2013 Recommendations The pivotal issue under Prong One of the Burlington/Carter analysis in this case is whether or not the CSE should have classified the Student as a student with a disability at the September 6, 2012 CSE meeting. If the CSE should have classified him as a student with a disability, then the failure to do so constitutes a failure to provide the Student with a FAPE (and would result in the Parents meeting Prong One of the Burlington/Carter) analysis. On the other hand, there would be no FAPE deprivation if the CSE’s determination that the Student was not eligible for classification as a student with a disability was appropriate. In that case, the Parents would have failed to meet Prong One of the Burlington/Carter criteria and would not be entitled to tuition reimbursement. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District The IDEA defines a “child with a disability” as a child “(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services” 20 USC §1401(3)(A). The determination of whether or not a child is a child with a disability under the IDEA therefore turns on a two-part analysis. The first part is whether or not the child falls within one of the enumerated disability categories. The second part is whether, by reason of the child’s disability, the child needs special education and related services.

Although the Parents maintain that the Student should be classified as having an , the primary case law cited in the Parents’ post-hearing brief (SRO Appeal No 07- 086) pertains to classification as a a student with a disability having an “emotional disturbance.” These two disability categories are defined as follows:

means 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 [Redacted]

syndrome, which adversely affects a student's educational performance. 8 NYCRR §200.1(zz)(1) (emphasis added).

Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance:

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

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

(v) a tendency to develop physical symptoms or fears associated with Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District personal or school problems.

The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR §200.1(zz)(4) (emphasis added).

The NYS Education Law defines a “child with a disability” and a “student with a disability” as follows: “a person under the age of twenty-one who is entitled to attend public schools . . . who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education . . . Special Education means specially designed instruction which includes special services or programs as delineated in subdivision two of this section, and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability” (NYS Educ. Law §4404(1)).

"Special services or programs" includes, in pertinent part, “special classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services, . . . assistive technology devices, . . . travel training, home instruction, and . . . itinerant teachers” (NYS Educ. Law. §4401(2)(a)). “Related services” includes “audiology, counseling including rehabilitation counseling services, occupational therapy, physical therapy, speech pathology, medical services as defined by regulations of the commissioner, psychological services, school health services, school nurse services, school social work, assistive technology services as defined under federal law, interpreting services, orientation and mobility services, parent counseling and training and other appropriate developmental, corrective or other support services” (NYS Educ. Law. §4401(2)(k)).

In order to qualify for classification as a student with a disability under the IDEA, a student’s disabling condition (be it OHI, emotional disturbance, or one of the other enumerated disabling conditions) must, based on the totality of the circumstances, “adversely affect” the student’s educational performance, and the student must need special education services by reason of his or her disability.

Based on the information that was available to it as of the September 6, 2012 CSE meeting, I find that the CSE did not err in its determination that the Student did not meet the criteria for Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District classification as a student with a disability. Although [Redacted]’s is one of the enumerated conditions under the disability category, the Student was not eligible for classification under because [Redacted]’s was not adversely impacting his educational performance. The Student was diagnosed with [Redacted]’s as a first grader and he had been successfully enrolled in general education classes, without special education services, for many years. [Redacted]’s Syndrome is a neurological disorder that is characterized by repetitive, stereotyped, involuntary movements and vocalizations (generally referred to as “[Redacted]”). By all accounts, the Student’s [Redacted]’s symptoms were being controlled medically (and pharmacologically) and were not impacting on his school performance, attendance, or ability to benefit from instruction.

The Student was, however, struggling with symptoms and problems that developed in addition to [Redacted]’s. As a result, he was diagnosed with [Redacted], [Redacted], and [Redacted]. These conditions dramatically impacted the Student’s life and his ability to function in a school setting. Although the Parents consistently referred to [Redacted], [Redacted] and [Redacted] as being part of the Student’s [Redacted]’s diagnosis, this is not consistent with the reports and evaluations obtained by the Parents.

[Redacted]s reported that the Student had been treated for a [Redacted] disorder and [Redacted], “as well as [Redacted]’s Syndrome” (P. Ex. N at 2). [Redacted] reported that the Student had a diagnosis of [Redacted]’s (“307.23") and a “concurrent disorder with prominent [Redacted] (309.28)” (D. Ex. 19). [Redacted] reported that she was treating the Student for [Redacted], and that he had “secondary symptoms” which included but were not limited to “[Redacted], disorder, [Redacted]s Syndrome, [Redacted] clinical [Redacted] and [Redacted]” (D.E.22 at 2). Dr. [Redacted] reported three separate diagnoses in October of 2011: [Redacted] (300.30), Generalized [Redacted] Disorder (300.02) and [Redacted]’s Disorder (307.25) (P. Ex. Q at 3-4). In October of 2012, Dr. [Redacted] diagnosed the Student with the following: [Redacted]’s Disorder, [Redacted] Disorder with generalized and [Redacted] features, [Redacted] Disorder, and a possible [Redacted] Disorder (P. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

Ex..V at 13). 2 None of these professionals referred to, or attributed, the Student’s [Redacted], [Redacted], and [Redacted] as being a subset or part of [Redacted]’s. Since it was the Student’s [Redacted], [Redacted], and [Redacted] that were primarily impacting him (as opposed to [Redacted]’s), would not have been an appropriate classification for the Student. The only possible classification for the Student would have been under the classification. He would have qualified under three of the different types of : “inappropriate types of behavior or feelings under normal circumstances,” “a generally pervasive mood of unhappiness or [Redacted],” and “a tendency to develop physical symptoms or fears associated with personal or school problems” (8 NYCRR §200.1(zz)(4)(iii)-(v). In addition, based on the social issues noted at the hearing, the Student might have also qualified under a fourth type subcategory of , “ an inability to build or maintain satisfactory interpersonal relationships with peers and teachers” (8 NYCRR §200.1(zz)(4)(iii)-(v)).

Despite having had conditions which fell within the various subcategories of the classification, the Student was not eligible for classification as a student with a disability. While the Student’s [Redacted], [Redacted], and [Redacted] were clearly impacting his ability to remain in the classroom (and sometimes to even remain in school) as of November 2011 (when he began home instruction), the conditions were not adversely affecting his educational performance at that time. His school report card for the first marking period of the 2011-2012 school year listed an unweighted grade average of 85.07, which placed him on the honor roll (D. Ex. 27). His courses during that semester included Honors English, Honors Math, Honors Chemistry, and AP World History (along with French, Choral Ensemble, Wind Ensemble and Physical Education).

It should be noted that the Student earned an 85.07 average when he was “in crisis.” By February of 2012, the Student’s (Ms. [Redacted]) reported that he was no longer in crisis (his medication

Dr. Barnosky’s evaluation was performed after the CSE’s September 6, 2012 meeting. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District regimen had been successfully modified and adjusted) and was ready to return to school. By the time that the CSE met seven months later, on September 6, 2012, the Student had continued to make progress in

(according to Ms. [Redacted]). At the end of the 2011-2012 school year, after dropping chemistry (which had been causing him some difficulty) and being on home instruction since November, the Student’s unweighted grade average was 89.09.

As such, when the CSE met on September 6, 2012, it was reasonable to conclude, based on the information that it had regarding the Student’s 2011-2012 academic performance, that the Student’s emotional issues were not adversely affecting his educational performance. Moreover, there was no indication that he was in need of special education or related services. Since the CSE did not have the benefit of evaluation or any information regarding a treatment plan to address the Student’s mental health or social/emotional issues, the CSE did not have any basis for determining that special education services were necessary to address those issues or for determining what special education services, if any, were necessary to address those issues in a school setting. This was a direct result of the Parents’ refusal to allow the CSE to obtain a evaluation of the Student.

As of the September 6, 2012 CSE meeting, the only information that the CSE had available to it regarding the manner in which the Student’s mental health and social/emotional needs could be met in an educational setting was [Redacted]’s November 2011 letter and [Redacted]’s February 22, 2012 letter. Mr. [Redacted]’s letter indicated that the “initiation of 504 accommodations would no doubt be of great benefit to him at this point” (D. Ex. 19). Ms. [Redacted]’s letter indicated that it was her “strong recommendation” that the Student be provided with the following accommodations upon his return to the school environment:

· Extended time for testing

· A weekly syllabus by teachers of upcoming assignments, lessons, tests, and projects, for the review of [[Student]] and his parents.

· Weekly parent/teacher communication regarding [[Student]]’s progress.

· Teacher reminders for [[Student]] to submit homework.

· Opportunity to resubmit homework without penalty. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

· Late pass provided to [[Student]] for post class student/teacher discussions.

· Universal pass to “safe haven.” (D. Ex. 22 at 2-3) There were no recommendations for any type of special education instruction, special education services, or related services. It was quite clear that Mr. [Redacted] and Ms. [Redacted] were recommending only accommodations. Neither one of them suggested that the Student required, or would benefit from special education services. Based on those reports, the evaluation performed by Ms. [Redacted], and the other documents and reports available to the CSE on September 6, 2012, there was no indication that the Student needed special education services. The CSE determination that the Student wasn’t eligible for classification as a student with a disability at that time was therefore correct.

The relevant Prong One inquiry in tuition reimbursement cases is limited to the CSE’s recommendations as of the time of the unilateral placement (which in this case was the beginning of the 2012-2013 school year) (R.E. v. NYC Dep’t of Educ., 694 F.2d 167 (2d Cir. 2012). “In determining the adequacy of an IEP, the parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the [unilateral] placement decision.” R.E. v. NYC Dep’t of Educ., 694 F.2d 167, 187 (2d Cir. 2012). As such, the relevant inquiry in this proceeding is limited to the CSE’s September 6, 2012 recommendations. However, since the parties both raised issues regarding the CSE’s two subsequent CSE meetings, I will discuss those meetings as well. 3 The issue of the CSE’s May 2, 2013 CSE recommendations was not raised in the due process complaint (the meeting did not occur until after the complaint was filed). However, both parties raised the meeting during the course of the hearing and in their post-hearing memoranda of law. The Commissioner’s Regulations provide as follows:

Subject matter of the impartial due process hearing. The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise. 8 NYCRR §200.5(j)(1)(ii). Both parties presented testimony about the May 2, 2013 CSE meeting at the hearing and appear to have tacitly agreed that it is within the scope of the subject matter of the hearing. Moreover, a key component of the subject matter of the hearing, Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

In an October 11, 2012 letter directed to “To Whom it May Concern,” [Redacted]s, a nurse practitioner, wrote as follows:

[[Student]] requires to be classified under IDEA. [[Student]] requires the following accommodations: He requires home work reminders and prompts to hand in his work, the lesson plan and required homework/test for the following week, a pass to be able to speak to a teacher after class if he has questions re: schoolwork, and time and half [sic] testing. These accommodations will allow [[Student]] to reach his academic goals in the least restrictive setting. (Parent Ex.. N at 2)

Once again, there was no recommendation for special education services. As with the recommendations of Mr. [Redacted] and Ms. [Redacted], Ms. [Redacted]s’ recommendations for the Student were limited to recommendations for accommodations. The December 7, 2012 CSE meeting was tabled in order to allow CSE staff time to review the evaluation that the Parents submitted during the course of the meeting (D. Ex. 37). Despite diligent efforts to secure the participation of the for the subsequent meeting, the CSE was not able to secure the evaluator’s participation. The meeting reconvened, without that evaluator, on May 3, 2013.

The Student’s mother walked out of the May 3, 2013 CSE meeting when the CSE raised the issue of a evaluation, and the meeting continued without the continued participation of the Student’s mother (who had simply walked out of the meeting without requesting that the meeting be continued on another day or otherwise indicating that she would continue to participate in the CSE process).The CSE once again concluded that the Student was not eligible for classification as a student with a disability (D. Ex.38). In reaching its decision, the CSE considered the additional documentation provided by the Parent (Ms. [Redacted]s’ October 11, 2012 letter, and Dr. [Redacted]’s October 2012 evaluation). As noted above, Ms. [Redacted]s’ letter cited a need for accommodations, but did not cite a need for special education services. Although her letter indicated that classification under the IDEA was “required,” that statement was not supported by any factors that as set forth in the due process complaint, is the CSE’s determination that the Student was not eligible for classification as a student with a disability during the 2012-2013 school year. Since the May 2, 2013 CSE meeting pertained to the 2012- 2013 school year, it is within the scope of the subject matter set forth in the Complaint. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District would warrant classification. Conspicuous in its absence in the letter was any reference to the type of special education program or special education services that were necessary or appropriate for the Student.

I give little weight to Ms. [Redacted]s’ October 11, 2012 conclusion that the Student needed to be classified under the IDEA (P. Ex. N at 2). The letter refers to a May 22, 2012 evaluation.4 Yet no evaluation report was submitted at the hearing or otherwise provided to the District. Nor was a May 22, 2012 evaluation report submitted as documentary evidence in this proceeding. Moreover, Ms. [Redacted]s’ recommendation for IDEA classification was made nearly five months after the evaluation. By that point, the Parents had refused to participate in a Section 504 meeting, had referred the Student to the CSE, had unilaterally placed the Student at [Redacted], had withdrawn their consent for a evaluation, had initiated due process proceedings, 5 and had already participated in the September 6, 2012 CSE meeting. In addition, the CSE had already been found the Student to be ineligible for classification under the IDEA. Coming, as it did, at that late date, the IDEA recommendation appears to have been made for litigation purposes or to support the Parents’ position in a subsequent CSE meeting (as opposed to having been an independent professional recommendation based on a current evaluation). Moreover, Ms. [Redacted]s’ IDEA recommendation was stated in a conclusory fashion, without any reference to the type of special education program and services, if any, that Ms. [Redacted]s believed was necessary for the Student. It is also apparent that Ms. [Redacted]s was operating under the mistaken impression that classification under the IDEA is necessary to receive accommodations. She appears to have confused the IDEA with Section 504.

Dr. [Redacted]’s evaluation report did not cite a need for special education services or a special It was not clear as to whether the May 22, 2012 evaluation was performed by [Redacted] [Redacted]s, NP, or [Redacted], M.D. The letter was on Ms. [Redacted]s letterhead, but it was signed by both Ms. [Redacted]s and Dr. [Redacted]. The within due process proceeding was the second one filed for the 2012-2013 school year. On August 17, 2012 (prior to the completion of the CSE’s evaluations), the Parents filed a due process complaint raising issues similar to the issues raised herein (see IHO Ex. IV at 4). That complaint was withdrawn without prejudice on September 28, 2012 (IHO Ex. IV at 6). That complaint was filed after serving the ten-day notice, but prior to completion of the CSE’s evaluations. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District education program (D. Ex. 35). At the conclusion of his report, Dr. [Redacted] recommended the following: continued neurologic follow-up for [Redacted]’s and [Redacted], continued pharmacological intervention for “affective and behavioral difficulties,” behavioral interventions “may be considered” for attention problems, continued to address limitations in social skills, emotional lability, [Redacted], [Redacted], and anger management, continued outside involvement in outside social activities, support information from the [Redacted]’s Syndrome Association, and “consideration” of parent/family training on [Redacted] management (D. Ex. 35 at 15). Dr. [Redacted] also noted that the Student’s current placement ([Redacted]) “appears appropriate” (D. Ex. 35 at 15).

Thus, as of the December 7, 2012 CSE meeting and the May 2013 CSE meeting, the information available to the CSE revealed that although the Student had several mental health and social/emotional issues (in particular, [Redacted], [Redacted], and [Redacted]) in addition to [Redacted]s’s, none of the professionals who had treated or evaluated the Student recommended any form of special education services. The only recommendations that had been made were that the Student receive accommodations. Moreover, the Parents’ continued refusal to consent to a evaluation and their failure to provide the CSE with the results of prior evaluations deprived the CSE of the information (regarding the Student’s mental health and emotional status) which might have revealed a need for special education services.

The medical records regarding Dr. [Redacted]’s October 31, 2011 evaluation of the Student were ultimately provided to the District on May 15, 2013 (which was after the May 2, 2013 CSE meeting). Although the medical records were not in the form of a written evaluation, the District acknowledged that the records contained the type of information that would normally be included in a evaluation. However, the records were provided too late for the CSE too have been able to make use of them for the 2012-2013 school year.

During the course of the evaluation, Dr. [Redacted] had been provided with information about the difficulties that the Student was experiencing at school (P. Ex. Q). Dr. [Redacted]’s treatment plan, as described in the October 31, 2011 medical progress note (P. Ex. Q at 3) and in her October 31, 2011 letter to Mr. [Redacted] (P. Ex. Q at 4), included medication and cognitive Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District behavioral therapy. Dr. [Redacted] did not recommend special education services or accommodations at school.

Based on the foregoing, I find that the CSE did not err in its September 6, 2012 and May 2, 2013 determinations that the Student did not meet the criteria for classification as a student with a disability under the IDEA. 6 I have considered the Parents’ various other challenges to the CSE’s decision and handling of the CSE referral, and find them to be without merit. As such, the Parents have not met the first of the three Burlington/Carter criteria for tuition reimbursement.

Based on this finding, the Parents are not entitled to tuition reimbursement for the cost of the Student’s 2012-2013 placement at [Redacted] and I need not consider the two remaining Burlington/Carter criteria. However, in the interest of a complete decision on the issues raised in this proceeding (and in order to provide a comprehensive decision in the event of an appeal), I will also address the parties’ claims with respect to Prongs Two and Three of the Burlington/Carter analysis. The Unilateral Placement at the [Redacted] School The Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Since the December 7, 2012 CSE meeting had been tabled in order to allow time to review the evaluation obtained by the Parents, no decision had been made at that meeting on the issue of the Student’s entitlement to classification under the IDEA. Since no recommendations were actually made at that meeting, I need not decide whether the December 7, 2012 CSE recommendations were appropriate, except to say that I find that the CSE’s determination to table the meeting to consider the new evaluation material was appropriate. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

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 (quoting Frank G , 459 F.3d at 364-65).

In Frank G., the court summarized the appropriate Prong Two standard as follows:

[P]arents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. An appropriate private placement need not meet state education standards or requirements. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. In addition, parents “may not be subject to the same mainstreaming requirements as a school board.” (. . . “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”). Frank G. at 364. (citations omitted).

“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 services a child’s individual needs” (Frank G. at 364) (citation omitted).

[Redacted] is a private school that provides its students with general education instruction in the form of 1:1 tutoring. It does not provide special education services or related services. In that sense, it was little different than the general education 1:1 tutoring that the Student had received through the District’s home instruction program as of the time that the Parents made their decision to unilaterally place the Student at [Redacted]. There were three obvious and primary differences between the Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

District’s home instruction program and [Redacted]. The first key difference was that on home instruction the Student received 1:1 tutoring in the home, while at [Redacted] he received it in a setting outside the home. In both programs, the Student received two hours per week of instruction in each academic subject (Tr. 1294; D. Ex. 30 at 2). The second key difference was that while on home instruction, the Student continued band classes at school (Tr. 59-60, 685, 691) and therefore participated in some level of instruction that was not in a 1:1 setting. The Student went to school every day for band and once a week for band lessons (Tr. 1359). The Student’s program at [Redacted] did not include any instruction that was not provided in a 1:1 setting. The third key difference was that while on home instruction he received homework assignments to be done at home (D. Ex. 34 at 47-48), while all “homework” at [Redacted] was done at school in the school’s “Homework Café” where the Student did his homework assignments under teacher supervision. The homework café teacher was a psychologist whose role was described as follows: “she’ll sit with him and help him make sure he gets all of his homework done . . She just keeps him on task and helps them if they get stuck” (Tr. at 1257).

When asked about the “educational atmosphere” at [Redacted], Ms. [Redacted] (the Student’s Lead Teacher at [Redacted]) testified as follows: “Our goal is to keep students relaxed and focused on their educational goals, not focused on . . . feeling oppressed by authority because some our of students are very anxious about that. So we have . . . nice couches and a variety of seating areas and soft lights . . .” (Tr. at 1234). The Student had a particular problem with lethargy at the beginning of the school year, which was alleviated, in part, as the year progressed (Tr. 1225-26). He frequently fell asleep in homework café (Tr. 1226). The school addressed this by waking him up and taking him on long walks to discuss why he was so tired, and by giving him coffee or another drink (Tr 1226-27). They also discussed caffeine consumption and the need to avoid sugary drinks (Tr. 1226).

[Redacted] provides students with a four day school week. Students have Monday/Wednesday classes and Tuesday/Thursday classes. Content area classes have one hour of instruction time and one hour of homework café on each of their scheduled days. So, a day with three classes means six hours of time in school (three hours for instruction and three hours of homework café) (Tr. at 1295). In addition students can come in for “mastery sessions” on Fridays to work with their teacher, or the homework Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District café teacher, in any areas in which they are struggling.

[Redacted] is not a special education school (Tr. 1269) and does not provide special education services or related services. During the 2012-2013 school year, there were a total of 22 or 23 students enrolled at [Redacted] (18 were full-time students, the remainder were tutoring or mentoring students) (Tr. at 1268). All but two or three of the students were students with disabilities (primarily [Redacted] disorders and ADD/ADHD) (Tr. 1268-69).

[Redacted] provided the Student with accommodations, such as taking breaks and extra time for assignments (Tr. at1246-49). In addition, if a student had an emotional issue or was upset about something they were permitted to tell their teacher that they needed to talk, and the teacher would spend the instructional hour helping the student address the emotional issue(s) rather than provide instruction (Tr. at 1260). When this occurred, an additional mentoring session is added to the Student’s program in order to address the academic content that was missed while emotional issues were being addressed (Tr. at 1261).

[Redacted] developed a “Formal Education Plan” (“FEP”) for the Student (P. Ex. E). The FEP listed accommodations to be provided: “Use of computer for written assignments . . Frequent breaks . . . Extended time for tests [and] Use of calculator” (P. Ex. E at 2)). It also listed three “[Redacted] Academy Goals”: “Improve organizational skills by maintaining a binder with dividers and folders for each class. . . Learn specific coping mechanisms to deal with stressful situations [and] Learn to initiate conversation with teachers and peers in the Homework Café” (P. Ex. E at 2). The Student’s FEP goals were developed by the Student (Tr. 1287-89). The FEP did not provide for specialized instruction, special education services, or related services. [Redacted] students also participated “Individual Reassessment of Commitment” (“IROC”) meetings every six weeks in order to decide if they have met their goals and to think about new goals (Tr. 1252). The school couldn’t hold regular IROC meetings due to “building issues,” and as a result the Student only had two IROC meetings during the 2012-2013 school year (Tr. at 1252)

By all accounts, the Student was happy at [Redacted] and felt more comfortable there than he did at the District’s high school. In addition, although he initially had difficulty in remaining in school Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District all day, this improved during the 2012-2013 school year (Tr. 1261-62). His teacher reported that “we were able to deal with any of his symptoms of [Redacted] or [Redacted] at school without having to send him home” (Tr. at 1622). [Redacted] addressed the Student’s mental health and emotional issues through the provision of accommodations. However, [Redacted] did not provide the Student with “educational instruction specially designed” to meet the Student’s unique needs. Instead, it provided him with 1:1 tutoring (which was what the Student received in the District’s home instruction program during the prior school year).

As noted above, “to qualify for reimbursement under the IDEA, parents . . . 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 (quoting Frank G , 459 F.3d at 364-65). In examining the totality of the circumstances, I find that the Parents did not meet this standard. Although [Redacted] provided the Student with accommodations, it did not provide him with educational instruction that was “specifically designed” to meet his unique needs, or with such services that were “necessary to permit” him to benefit from instruction. [Redacted] is a general education program, it is not a special education program. [Redacted] is a uncertified private school that cannot grant high school diplomas. While parents are not held as strictly to the standard of placement in the Least Restrictive Environment (LRE”) as school districts, the restrictiveness of a unilateral placement is still a relevant factor in assessing the “totality of the circumstances.” The [Redacted] placement was an overly restrictive placement for the Student for the 2012-2013 school year. Although there may have been one or two other students present in the room when the Student was in the homework café, his instruction at the school was exclusively one-to-one. He had no interactions with other students (whether typically developing peers or students with disabilities) when receiving instruction.

The Student’s difficulty in attending and lethargy at school were addressed, in part, by talking to teachers, taking walks, and drinking coffee. When social/emotional issues arose, he received by talking to teachers who had no background or training in counseling or therapeutic interventions. This included discussions about the use of caffeine to address his lethargy. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

These aspects of the [Redacted] program were not appropriate. It took several months during the Fall of 2011 and Winter of 2012 for the Student’s doctors to arrive at the correct balance of medications to treat his various conditions. In addition, the Student had been receiving intensive cognitive behavior therapy from Ms. [Redacted] (a highly trained and experienced professional) starting in November of 2011 and continuing throughout the Student’s 2012-2013 [Redacted] placement. I cannot find that adding caffeine to the pharmacological mix and providing ad hoc by staff who lacked counseling training was appropriate.

Based on all of the foregoing factors, I find that the Parents did not establish that the [Redacted] program was designed to provide, or that it in fact provided, the Student with educational instruction that was specifically designed to Student’s unique needs. As such, the Parents have not met the second of the three Burlington/Carter criteria for tuition reimbursement. Equitable Factors

As per the discussion above, the Parents’ failure to meet Prong One and Prong Two of the Burlington/Carter analysis warrants an order denying tuition reimbursement. However, even if I had found that the Parents had met Prongs One and Two of that analysis, I would be compelled to find that equitable factors precluded tuition reimbursement. The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. Tuition reimbursement may be denied when a parent has (by action or inaction) interfered with the CSE evaluation, program development and placement process.

The Parents are clearly very angry with the CSE and District staff, and undoubtedly found themselves frustrated by the Section 504 and IDEA procedural processes. I sympathize with their situation and am well aware of the pressure and emotional ansgt that they experienced when their son’s mental health and social/emotional status deteriorated during the Fall of 2011. I also realize that their refusal to consent to a evaluation and to share private evaluation results may have been grounded in an interest in protecting family privacy, in general, or the Student’s privacy in particular. The Parents expended herculean efforts in obtaining appropriate medical and mental health treatment for their son. They turned to a wide variety of professionals in their efforts to help their The Student’s mother also expressed a concern that the District’s sole reason for requesting a evaluation was to support a recommendation for a residential placement. The Parents were vehemently opposed to a residential placement. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District him: a , pediatricians, , s, a , a licensed , etc . They also ardently and diligently advocated for him at the school and district level, and ultimately arranged for him to receive home instruction when he was “in crisis” in October and November of 2011. As a credit to their efforts, by late February of 2012 the Student was no longer in crisis and was receiving, and making progress in, cognitive behavioral therapy. The Parents took great care to ensure that the Student was receiving treatment from professionals with whom he felt comfortable.

That being said, the Parents were still required to cooperate with the CSE’s evaluation process. The Parents consistently and repeatedly refused to allow the CSE to obtain a evaluation. They did not provide the CSE with CSE with documentation or evaluation reports from the Student’s October 31, 2011 and May 22, 2012 evaluations. 8 In light of the Student’s various diagnoses (severe [Redacted], [Redacted], and [Redacted]), the Section 504 Committee (and later on, the CSE) needed to either obtain or have access to a evaluation. The Parents prevented this.

The Section 504 Committee tried to reschedule the Section 504 meeting (which had been tabled in February of 2012 pending the submission of documentation from the Parents) for a time shortly before the Student would be returning to school, but the Parent did not provide information about when the Student would be returning to school. A Section 504 meeting was ultimately been scheduled for the end of the 2011-2012 school year, but was cancelled when the Student’s mother advised the District that she would not be attending the Section 504 meeting because she had decided to pursue classification under the IDEA instead.

The medical records regarding the October 31, 2011 evaluation were ultimately provided to the District in the context of the within due process proceeding (see discussion below). Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

Notwithstanding the fact that the Parents never shared Dr. [Redacted]’s evaluation results with the District prior to the filing of the Due Process Complaint, the Parents called Dr. [Redacted] as a witness at the hearing in this proceeding. In fact, Dr. [Redacted]’s testimony and the records pertaining to her evaluation of the Student constituted key components of the Parents’ case at the hearing. It is somewhat striking that the Parents felt the need to use testimony and documentary evidence about Dr. [Redacted]’s evaluation to support their IDEA claims at the hearing after having repeatedly refused to share Dr. [Redacted]’s evaluation results with the District’s CSE and Section 504 Committee. In fact, the Parents did not allow the District to have access to Dr. [Redacted]’s evaluation records until the District had submitted a proposed subpoena duces tecum directing the Parents to produce executed HIPPA authorizations. The proposed subpoena was addressed at the April 8, 2013 pre-hearing conference in this proceeding. I indicated that a subpoena was not the correct procedural mechanism for obtaining HIPPA authorizations, 9 but that upon a written application from the District I would be inclined to issue an interim order directing the signing of HIPPA authorizations (See Tr. at 7-9). I also indicated that the failure to provide the District with signed HIPPA authorizations could result in an order excluding certain evidence (See Tr. at 11). The HIPPA authorization was ultimately signed (see P. Ex. P.). Dr. [Redacted]’s medical records were provided to the District’s attorney on May 15, 2013 (see P. Ex. Q).

The Parents began investigating private school placements June of 2012 and identified [Redacted] as a possible placement at that time (Tr. at 1383). The Parents hand-delivered a CSE referral to the District on June 20, 2012 (D. Ex. 34 at 1) and signed consent to evaluate on Friday, June 29, 2012 (D. Ex. 34 at 35). On Monday, July 9, 2012 the Parents delivered a 10-day notice of unilateral placement to the District in which they wrote:

I requested that my child, [[Student]], be considered for IDEA in mid-June. As of yet, no testing has been set up. We are extremely concerned about placement for our son by September. We have identified [Redacted] Academy, located in [Redacted], as an appropriate placement, so we will be making unilateral placement at [Redacted]. We will be seeking tuition reimbursement. (D. Ex. 3 at 36) A subpoena duces tecum calls for the production of documents already in existence, but cannot direct the creation of new documents. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

Although at first blush it looks like the Parents gave the CSE ten days (between June 29 and July 9) to evaluate the Student or make arrangements for such evaluation, relying on the two dates is misleading in terms of how much time the CSE actually had to perform or schedule evaluations. The intervening week between Friday, June 29, 2012 and Monday, July 9, 2012 included the Fourth of July holiday (which fell on a Wednesday in 2012). The District was likely closed for most, if not all, of that week. Although it is not clear what caused the additional delay, the consent to evaluate was not received by the District (per the date-stamp on the document) until July 11, 2012 --- which was after the District received the ten-day unilateral placement notice. Even if the ten days between the signing of consent and the unilateral placement notice could be considered to be an appropriate amount of time for a CSE to evaluate a student (which it most certainly is not), the CSE did not in fact have such ten day period.

A evaluation was among the evaluations listed on the consent form signed by the Student’s mother on June 29, 2012. As such, it appears that the Parents had, at least briefly, consented to a evaluation by the CSE. The hearing record is silent as to when that consent was withdrawn, but it is clear that it must have been withdrawn fairly promptly. The Parents did not permit the CSE to obtain a evaluation as part of the Summer 2012 CSE evaluation of the Student. By that point, the Parents had obtained two private evaluations of the Student (one on October 31, 2011, and another on May 22, 2012). Those evaluations and reports, and/or the related medical records, were not shared with the CSE at any point prior to the September 6, 2012 CSE meeting. The failure to share reports and evaluations in a timely fashion constitutes a failure to cooperate with the CSE. In addition, by withdrawing consent for a evaluation, the Parents and actively interfered with the CSE evaluation process. That factor alone is sufficient to warrant denial of tuition reimbursement on equitable grounds.

The Parents’ interference and lack of cooperation continued during the course of the 2012-2013 school year and precluded the CSE from obtaining and considering evaluation data for the December 2012 and May 2013 CSE meetings. The Parents have attempted to place the burden on the CSE to track down evaluations and documents from the various professionals who treated or evaluated the Student. While the CSE has the obligation of evaluating a student, parents are obligated to share evaluations and reports (and to advise the CSE that such evaluations and reports actually exist). Since these various professionals had been retained or consulted by the Parents, it was the Parents’ obligation to supply the CSE with evaluations and reports, or other documentation regarding diagnoses and treatment recommendations, from the professionals. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District The Parents obtained a private evaluation of the Student in October of 2012. They did not provide the CSE with a copy of the evaluation until after the December 7, 2012 meeting commenced. The delay in providing the CSE with a copy of the evaluation resulted in a need to table the meeting in order to allow the CSE time to review the evaluation. The delay in sharing the report with the CSE was another instance of the Parents’ and lack of cooperation with the CSE process.

Dr. [Redacted]’s October 31, 2011 evaluation (which had not been shared with the CSE) was provided to Dr. [Redacted] as part of the October 2012 evaluation (See P. Ex. V at 2). 10 Dr. [Redacted] cited Dr. [Redacted]’s evaluation results in the evaluation. The evaluation, which was not provided to the CSE at the September 6, 2012 CSE meeting, was provided to Dr. [Redacted] just one month later. It appears that information and documentation was made readily available to the professionals selected by the Parents, but was withheld from the CSE. As a result, the CSE was provided with a subset of the available evaluation data. This is consistent with the longstanding pattern of parental noncooperation regarding the Student’s issues and their longstanding pattern of selecting or limiting the information provided to District staff.

The key issues that interfered with the Student’s ability to attend school during the 2011-2012 school year were [Redacted], [Redacted], and [Redacted]. These are all issues. In order to adquately consider the whether or not those conditions warranted classification as a student with a disability (and to develop an appropriate special education program if they did), the CSE needed a evaluation. The Parents severely limited the information that the CSE had access to and engaged in a prolonged period of withholding information from the CSE. This constitutes an equitable bar to tuition reimbursement.

The Parents appear to have been of the view that all they needed to do was provide the CSE with the information that they thought was relevant, and that the CSE would provide the services or accommodations they sought as a matter of course. In fact, Ms. [Redacted] testified that both she and the Student’s mother thought that the February 2012 Section 504 meeting was going to be a “slam dunk” and that they were quite taken aback when the committee didn’t “buy into” what they were saying and immediately agree to implement the requested accommodations (Tr. at 1112-13, 1147-48).

The Parents also interfered with the CSE’s efforts to secure Dr. [Redacted]’s participation in a CSE meeting. The CSE engaged in substantial efforts to have Dr. [Redacted] participate; it sent letters, In fact, the first time that the District was aware that the Student had actually had a full evaluation on October 31, 2011 was on December 7, 2012, when [Redacted] saw the evaluation referred to in Dr. [Redacted]’s evaluation (Tr. at 944).. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District made phone calls, offered him flexible scheduling, and agreed to pay his fee ( D. Exs. 44,46, and 47; Tr. 793-95). Dr. [Redacted] ultimately refused to participate in a CSE meeting because the Student’s family “concluded that his attendance was not necessary/required” (D. Ex. 47 at 1).

Parents sometimes overlook the fact that although school districts have obligations and responsibilities under the IDEA and the NYS Education Law, school districts have rights as well (due process is a two-way street). For example, the regulatory definition of CSE members (e.g., meeting participants) includes the following:

[O]ther persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; 8 NYCRR § 200.3(a)(1)(ix) (emphasis added)

By telling Dr. [Redacted] that his attendance was not necessary or required at a CSE meeting, the Parents inappropriately impinged on the District’s right to invite Dr. [Redacted] to the CSE meeting (which the CSE needed in order to be able to better understand Dr. [Redacted]’s October 2012 evaluation of the Student).

Tuition reimbursement may be denied on equitable grounds if the actions taken by parents are “unreasonable.” The Student’s mother testified that she began researching “alternative high schools” in June of 2012 because “there was nothing in place for [Student] in [Redacted] Schools and I absolutely did not want him to start the year off on . . . home instruction . . He needed to be in a school setting for the beginning of that [2012-2013] school year” (Tr. at 1383-84). She was correct in her assertion that the Student needed to be in a school setting (according to Ms. [Redacted], the Student was ready to return to the High School, with appropriate accommodations, months earlier). The Section 504 Committee scheduled a June 2012 meeting in order to make arrangements for appropriate accommodations for the Student’s return to school in September of 2012. However, the Parents advised the District that they would not participate in such a meeting because they had decided to pursue IDEA classification instead. The Section 504 meeting was cancelled, as without parental input on the Student’s then-current condition and accommodation needs, it would not have been possible for the committee to develop an appropriate accommodation plan. The refusal to participate in a Section 504 meeting was not Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District reasonable. Had the Parents participated in the June 2012 Section 504 meeting, there may well have been “something in place” in the District for the Student. Without parental participation, there was a guarantee that nothing could be “in place.”

As more fully discussed above, the Parents referred the Student to the CSE at the end of the school year and signed consent for evaluation on June 29, 2012, after classes had ended for the year. The CSE referral was promptly followed by a 10-day unilateral placement notice. The 10-day notice was sent before the CSE had the opportunity to evaluate the Student, let alone convene a meeting to consider the evaluation results. These actions were also not reasonable, as the CSE was not provided with the opportunity to evaluate the Student and make recommendations prior to the 10-day notice.

Moreover, these actions lead me to conclude that the Parents never had any intention of accepting a CSE placement or allowing the Student to attend a District public school for the 2012-2013 school year. Tuition reimbursement may be denied if a parent never had any intention of sending a child to a public school and simply “went through the motions” of the CSE referral and evaluation process in order to obtain tuition reimbursement. 11 The Parents made the referral to the CSE after they began investigating private schools (and after they had identified [Redacted] as a possible placement for the Student). They decided to send the Student to [Redacted], and provided the District with notice of their intent to unilaterally placed the Student at [Redacted] and seek tuition reimbursement, before the CSE had even had the chance to evaluate the Student. After signing consent to a evaluation, the Parents withdrew that consent before the CSE had the opportunity to obtain the evaluation.

See J.P. v. NYC Dep’t of Educ., 2012 WL 359977 (E.D.N.Y. 2012); Werner v. Clarkstow Central Sch. Dist., 363 F.Supp.2d 656 (S.D.N.Y. 2005). Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District The initial [Redacted] contract (which covered the Student’s first semester courses) was dated July 25, 2012 (P. Ex. D at 7- 13). 12 The Student’s [Redacted] FEP was developed at some point in August of 2012, and his teachers met with the head of school to review the Student’s FEP and other documents a week before school started (Tr. at 1269). The terms of the enrollment contract had thus been set before the CSE even completed its evaluation. The Student’s FEP had been created and his teachers had met to prepare for his first day of school at [Redacted] before the CSE meeting had even been held.

The Parents appear to have had no intention to enroll the Student in a District program. They referred the Student to the CSE and then proceeded to lay all the groundwork for the Student to attend [Redacted] when the new school year started in September. The Parents’ first due process complaint (which also sought tuition reimbursement for the [Redacted] placement) was filed on August 17, 2012 (before the CSE had completed its evaluation or had the opportunity to convene a CSE meeting). The lack of any parental intent to send the Student to a public school warrants denial of tuition reimbursement on equitable grounds. Rather than referring the Student to the CSE out of a bona fide interest in having the CSE evaluate the Student and recommend an appropriate special education program, the Parents referred the Student to the CSE as the first step in the process of obtaining District funding for the [Redacted] placement.

Based on the foregoing, I find that equitable factors preclude the Parents’ claim for reimbursement. The Parents have not met the third of the three Burlington/Carter criteria for tuition reimbursement.

The Parents are not, therefore, entitled to reimbursement for the cost of the Student’s 2012-2013 placement at [Redacted]. The Parent’s Transportation Claim

The Parents request an order directing the District to reimburse them for the cost of transporting the Student to and from [Redacted] [Redacted]. The request was filed with the District on March 28, 2013 (P. Ex. B at 2). Prior to that point, [Redacted] [Redacted] was operating out of a campus (the Parents do not seek reimbursement for the cost of transporting the Student to and from . On April 3, 2013, the District denied the transportation request because the school was more than 15 miles from The contract provides for limited refunds in the event that a student is withdrawn prior to the first day of school; after the first day of school, parents are obligated to pay the full contract amount even if a student is withdrawn (P. Ex. D at 19). That complaint was withdrawn without prejudice on September 28, 2012. The District maintains that it was withdrawn due to lack of appropriate school certification (IHO Ex IV at 6), while the Parents maintain that the Parents’ decision to withdraw the complaint was “based on many considerations” (IHO Ex. V at 4). At the hearing, it was suggested that the complaint was withdrawn because [Redacted] [Redacted] had to relocate its classes to [Redacted]’s campus due to problems with a certificate of occupancy for the [Redacted] premises (Tr. 1221). Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District the Student’s home. (P. Ex. B at 1). Since the matter (as described on the Parents’ March 28, 2013 transportation request form) involves a request for transportation to a private or parochial school, as opposed to special education transportation, I am not sure if I in fact have jurisdiction over the request. None-the-less, the transportation claim was raised as part of the Parents’ IDEA claim in the Due Process Complaint. As such, I will rule on the request.

The transportation reimbursement request must be denied. The request form filed by the Parents constituted a request for transportation for the 2013-2014 school year. The District’s denial of a request for 2013-22014 transportation cannot form the basis for directing reimbursement for the cost of 2012-2013 transportation costs. In addition, the District is correct in its assertion that it cannot provide school bus transportation for schools that are over fifteen miles from a student’s home absent voter approval (see NYS Educ. Law §3635). There has been no such voter approval in the District. As such, school bus transportation is limited to fifteen miles. According to the Parent, [Redacted] is thirty-two miles from the Student’s home (Tr. at 1387). This is substantially beyond the fifteen mile limit imposed by §3635. The Parents were not entitled to District-provided transportation to and from [Redacted], and are therefore not entitled to reimbursement for transportation costs. The District’s Request for Evaluations

Prior to conducting an initial evaluation or a reevaluation, a CSE must obtain parental consent (34 C.F.R. §300.300; 8 NYCRR 200.4[b][1]). Consent for an evaluation means that parents have been informed of all relevant information in their native language or other mode of communication, that they understand and agree in writing to the evaluation, and that the consent form describes the evaluation procedures; in addition, parents must understand that the granting of consent is voluntary and may be revoked at any time (34 C.F.R.§300.300[a] and [c]; 34 C.F.R. §300.304[a]; 8 NYCRR 200.1[l]). If a student's parent does not consent to an evaluation, the CSE may “purse the initial evaluation [or reevaluation] by utilizing the procedural safeguards in subpart E [of the Part 300 Regulations] (including the mediation procedures under §§ 300.506 of the due process procedures under §§ 300.507 through 300.516)” (34 C.F.R. §300.300[a][3][i]; 34 C.F.R. § 300.300[c][2]). Parental consent need not be obtained if a CSE can demonstrate that it made reasonable efforts to obtain such consent and the parent failed to respond (34 C.F.R. §300.300(c)(2)).

In this case, the Parents refused to consent to a evaluation, despite numerous Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District requests, during the 2011-2012 school year. After referring the Student to the CSE in June of 2012, the Parents consented to a evaluation, but revoked that consent shortly thereafter. The CSE provided the Parents with appropriate prior written notice regarding its request for a evaluation (D. Ex. 34 at 32-33). The Parents have clearly indicated that they will not consent to such an evaluation; they suggest that Dr. [Redacted]’s evaluation was sufficient and that there is no need for a evaluation. However, the evaluation obtained by the Parents is no substitute for a evaluation. Two of the District’s witnesses (both of whom are psychologists) testified about the difference between a evaluation and a evaluation.

Ms. [Redacted] explained that a evaluation, which is performed by or a n , primarily focuses “on cognitive functioning and the impact of a neurological condition on a student’s cognitive functioning and behavior” (Tr. at 555), whereas a evaluation “is conducted by a , a medical doctor who is looking at a student’s mental health and determining if there are any psychiatric or mental health issues that are impacting the student’s overall adjustment” (Tr. at 555). She indicated that the primary concern that the CSE had about the Student went to his emotional status because “that seemed to be the primary issue preventing him from functioning and remaining in school” (Tr. at 555-56).

Ms. [Redacted] testified that “ testing focuses much more on the difference between . . . certain brain functions and behavior such as cognitive abilities, language abilities, attention, memory . . . [It] might also look into . . . central nervous system disease or traumatic brain injury, but it’s . . . in relation to how it’s affecting the person’s brain function” (Tr. at 977-78). She indicated that a evaluation is used to evaluate a person’s mental health status, social/emotional functioning, or other psychiatric issues (Tr. 978-79). She opined that the issues that the Student presented with went beyond the scope of measuring cognitive abilities, memory, language, or attention (Tr. at 979). She further indicated the types of issues that the Student has would affect someone more on an emotional level and that the CSE needed current information to determine why the issues were affecting the Student in school and what recommendation should be made based on that information (Tr. at 980). Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District The Student’s diagnoses have changed over time. As of Dr. [Redacted]’s October 31, 2011 evaluation, the Student was diagnosed with [Redacted], [Redacted]’s, and Generalized [Redacted] Disorder (P. Ex. Q). On February 21, 2012, [Redacted], , reported that the Student had a severe form of [Redacted], and that he also struggled with [Redacted], [Redacted] disorder, [Redacted]s, [Redacted], clinical [Redacted], and [Redacted](D. Ex. 22). As of May 22, 2012, Dr. [Redacted] (a ) and/or [Redacted]s (a nurse practitioner) diagnosed the Student with [Redacted]’s, [Redacted], and [Redacted] Disorder (P. Ex. N). The Student has not had a evaluation since May of 2012.

Although the District ultimately received (on May 15, 2013) a copy of Dr. [Redacted]’s file records and notes for the October 31, 2011 evaluation, the District was never provided with a evaluation or other notes or records from May 22, 2012 [Redacted]/[Redacted]s evaluation. The CSE cannot, therefore, utilize the results of the May 2012 evaluation in making recommendations regarding the Student’s possible need for classification as a student with a disability or in formulating special education or Section 504 recommendations.

During cross examination, Dr. [Redacted] was asked for her opinion as why to another evaluation might be done for an individual six months after a prior evaluation. Dr. [Redacted] testified that another evaluation would be done if things had changed over time, such as symptoms changing or worsening, or new symptoms appearing (Tr. at 1065-1066), and that “Functioning may have changed dramatically one way or another, improved or worsened usually would be the reason” (Tr. at 1066).

The symptoms that impacted the Student’s ability to attend school during the 2011-2012 school year were primarily in nature ([Redacted], [Redacted], [Redacted]). He was in crisis at the time of Dr. [Redacted]’s October 2011 evaluation. He is no longer in crisis, although his mental issue and social/emotional issues are reportedly still impacting his functioning. Some aspects of his prior problems have been alleviated, while (according to Ms. [Redacted]), a variety of different, secondary symptoms subsequently began to impact him. The Student’s symptoms (and the extent to which these symptoms impact him in an educational setting) clearly evolved and changed over time. A new Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District evaluation is warranted at this time. His parents continue to believe that special education programming and/or services are warranted. The Student was on home instruction for the last eight months of the 2011-2012 school year and was placed in a highly restrictive 1:1 setting for the entire 2012-2013 school year. Even in that 1:1 setting, social/emotional issues continued to be a problem. 14 Based on Dr. [Redacted]’s standard ( symptoms changing, new symptoms appearing, functioning changing), a new evaluation is warranted.

The CSE is charged with “child find” obligations under the IDEA. It needs to have a comprehensive and current evaluation in order to determine whether the Student should be classified as a student with a disability at this point and, if so, what special education services or interventions should be recommended. It did not have sufficient evaluative information available during the 2012-2013 school year, and was thus put in a position where it was required to make its recommendations without appropriate information on the Student’s mental health and social/emotional issues. It should not have to do so again for the current school year.

I reject the Parents’ contention that the District’s application for a evaluation is “a blatant attempt to use a of their choosing for litigation purposes only” (IHO Ex. V at 7). The purpose of the application was not to gain a litigation advantage in the pending action, as the granting or denying of the District’s application has no bearing on the issue of the Parents’ tuition reimbursement claim. Nor would it provide the District with additional evidence to submit in the present case, as with the issuing of this decision the case will be closed.

The purpose of the instant application for a evaluation is to provide the CSE with current information regarding the Student’s mental health issues and mental status. Having listened to the testimony of the District’s witnesses, I find that the District’s Due Process Complaint seeking a evaluation was filed in good faith. Without a new evaluation, the CSE will be unable to assess the Student in all areas of his “suspected disability” and make its IDEA eligibility determination (and, if appropriate, special education program recommendations) based on a complete (See Tr. 1225, 1241, 1242-4, 1246-47, 1256, 1262-63, 1274-75, 1291, 1301) Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District and comprehensive assessment. Based on the results of the evaluation, it may well be that a functional behavior assessment and behavior intervention plan are warranted.

The District’s request for an order overriding the Parents’ refusal to consent to a evaluation must be granted. In light of the sensitive and personal nature of a evaluation, I decline to direct that the Student be evaluated by a of the District’s choosing without first giving the Parents the opportunity to select a to perform the evaluation.

ORDER

IT IS HEREBY

ORDERED that the Parents’ request for tuition reimbursement for the cost of the Student’s 2012-2013 placement at the [Redacted] Academy [Redacted] is denied; and it is further

ORDERED that the Parents’ request for reimbursement for the cost of transporting the Student to and from the [Redacted] Academy [Redacted] for the 2012-2013 school year is denied; and it is further

ORDERED that the District’s request for an order authorizing a evaluation of the Student without parental consent is granted; and it is further

ORDERED that the District is hereby authorized to obtain a evaluation of the Student and the Parents are hereby directed to produce the Student for such evaluation; and it is further

ORDERED that the foregoing evaluation shall be performed by a selected by the District unless the Parents provide the District with written notice (which must be delivered to the District no later than November 22, 2013) identifying the (who may not be Dr. [Redacted] or Dr. [Redacted]) that they have selected to perform the evaluation; and it is further

ORDERED that if the Parents do not provide the District with the name and contact information of the that they have selected by November 22, 2013, the District may select a for the evaluation; and it is further

ORDERED that the foregoing evaluation shall be at District expense (whether performed by a selected by the District or a selected by the Parents). Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

/S/ Mindy G. Wolman

Dated: November 12, 2013

MINDY G. WOLMAN

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35- day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

PERSONS WHO APPEARED AT APRIL 8, 2013 PRE-HEARING CONFERENCE

For District:

[Redacted], Esq. Attorney (By Telephone)

[Redacted] Assistant Superintendent of Pupil Services (By Telephone)

For Parents:

[Redacted], Esq. Attorney (By Telephone)

PERSONS WHO APPEARED AT JUNE 27, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

[Redacted]* Guidance Counselor

[Redacted], Ed.D.* School Psychologist

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

PERSONS WHO APPEARED AT JULY 25, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

[Redacted], Ed.D.* School Psychologist

[Redacted]* Guidance Counselor

[Redacted]* Student Assistance Counselor

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

Other:

[Redacted] Observer Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

* Testified at Hearing Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

PERSONS WHO APPEARED AT AUGUST 2, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

[Redacted]* Assistant Principal

[Redacted], Ed.D.* Principal

[Redacted]* School Psychologist

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

PERSONS WHO APPEARED AT AUGUST 6, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

[Redacted]* School Nurse

[Redacted]* Superintendent

[Redacted]* Director, Secondary Special Education

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

PERSONS WHO APPEARED AT AUGUST 7, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

[Redacted]* Director, Secondary Special Education

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

* Testified at Hearing Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

PERSONS WHO APPEARED AT AUGUST 13, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

[Redacted]* School Psychologist

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

[Redacted], M.D.* Psychiatrist

PERSONS WHO APPEARED AT AUGUST 14, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

For Parents:

[Redacted], Esq. Attorney

[Redacted] Parent

[Redacted], LCSW* Licensed Clinical Social Worker

PERSONS WHO APPEARED AT AUGUST 30, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Assistant Superintendent of Pupil Services

For Parents:

[Redacted], Esq. Attorney

[Redacted]* Parent

[Redacted], LCSW* Licensed Clinical Social Worker

[Redacted]* Math and Science Teacher

* Testified at Hearing Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

DOCUMENTARY EVIDENCE

SCHOOL DISTRICT EXHIBITS

1. Correspondence by and between Parent and [Redacted], 9/7/11, 1 p. 2. Correspondence by and between Parent and [Redacted], 9/8/11, 1 p. 3. Correspondence by [Redacted] to District staff, 9/14/11, 1 p. 4. Correspondence by and between Parent and [Redacted], 9/27/11 1 p. 5. Correspondence by and between Parent and [Redacted], 10/5/11, 1 p. 6. Correspondence by and between Parent and [Redacted], 10/5/11, 1 p. 7. Correspondence by [Redacted] to District staff, 10/5/11, 1 p. 8. Correspondence by and between Parent and [Redacted], 11/1/11, 1 p. 9. Correspondence by and between Parent and [Redacted], 11/10/11, 1 p. 10. Correspondence by and between Parent and [Redacted], 11/10/11, 1 p. 11. Correspondence by and between Superintendent of Schools and District staff, 11/16/11, 1 p. 12. Correspondence by [Redacted] to District staff, 11/18/11, 1 p. 13. Correspondence by and between Parent and [Redacted], 1/3/12, 1 p. 14. Correspondence by and between Parent and [Redacted], 3/4/12, 1 p. 15. Correspondence by and between Parent, [Redacted], and [Redacted], 3/30/12, 1 p. 16. Correspondence by and between Parent and [Redacted], 3/30/12, 1 p. 17. Correspondence by Parent to [Redacted], 11/17/11, 1 p. 18. Section 504 Referral Packet, 12/8/11, 8 pp. 19. Correspondence by [Redacted], FNP-BC, 11/10/11, 1 p. 20. Section 504 Committee Recommendation and Minutes, 2/21/12, 2 pp. 21. Correspondence by Parent to [Redacted], 2/24/12, 1 p. 22. Correspondence by Parent to [Redacted], 2/24/12, 3 pp. 23. Correspondence by Parent to [Redacted], 2/27/12, 1 p. 24. Correspondence by Parent to [Redacted], undated, 1 p. 25. [Student] Transcript (10th grade), undated, 1 p. 26. [Student] Class Schedule (10th grade), 1/20//12, 1 p. 27. [Student] First Quarter Report Card (10th grade), 11/10/11, 1 p. 28. [Student] Fourth Quarter Report Card (10th grade), 7/2/12, 1 p. 29. [Student] Attendance History (2006-2012), 9/13/12, 1 p. 30. [Student] Application for Homebound Instrution, 11/16/11, 3 pp. 31. Correspondence/Script by [Redacted], 1/24/10, 1 p. 32. Evaluation Report, 8/17/12, 14 pp. 33. Health Office Records, various dates, 10 pp. 34. Letter to [Redacted], 6/9/12, with attachments, 48 pp. 35. Evaluation, October 10 and 23, 2012, 15 pp. 36. CSE Ineligibility document, 9/6/1/2, and related documents, 6pp. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

37. Committee Meeting Information, 12/7/12, and related documents, 9 pp. 38. Prior Written Notice of Proposed Ineligibility for Special Education, 5/3/13, and related documents, 7 pp. 39. School data, various dates, 15 pp. 40. Phone Log, Attendance History, and Physical Examination form, various dates, 4 pp. 41. Report card and related documents, various dates, 8 pp. 42. Letter from [Redacted], undated, 1 p. 43. Letter from [Redacted], 7/27/12, 1 p. 44. Letter from [Redacted], 1/21/13, 1 p. 45. Letter from [Redacted], 1/31/13, 1 p. 46. Letter from [Redacted], 2/12/13, 1 p. 47. Letter from [Redacted], 2/28/13, 2 pp. 48. Letter from [Redacted], /29/13, 1 p.

PARENT EXHIBITS

A. Emails to and from Parents, 9/8/11 through 6/13/12, 74 pp. B. Letter from [Redacted] denying transportation to [Redacted] Academy, 4/3/13, 2 pp. C. [Redacted]’s Program Description, undated, 30 pp. D. [Redacted]’s Enrollment Contract for the 2012-2013 school year, 2/21//13, and related documents with various dates, 32 pp. E. [Redacted]’s Formal Education Plan and related documents, undated, 20 pp. F. Student Transcript from [Redacted] S.D., 9/6/12, and related documents with various dates, 14 pp. G. [Redacted]’s English 11 Honors Curriculum Map (Semester 2) with samples of work and Grade Sheet, 29 pp. H. [Redacted]’s English 11 Additional Charting and work samples, 35 pp. I. [Redacted]’s Semester 2 Chemistry Curriculum Map and Grading Sheet, 9 pp. J. [Redacted]’s Semester 2 Pre-Calculus Curriculum Map, work samples and Grading Sheet, 15 pp. K. [Redacted]s’ US History Charting, Curriculum Map and work samples, 43 pp. L. [Redacted]’s Semester 1 Chemistry Curriculum Map, with work samples and Grading sheet, 18 pp. M. [Redacted]’s Progress Report, 6/6/13, 4 pp. N. Letter from [Redacted]s, , and [Redacted], MD, 10/12/12, with fax cover page from Mrs. , 2 pp. O. Letter from [Redacted], , 11/10/11, 1p. P. Letter from [Redacted], Esq. to Dr. [Redacted] requesting copy of [Student]’s medical records, 5/13/13, 1 p. Q. Dr. [Redacted]’s bill for medical records, 5/15/13, with fax cover sheet and [Student]’s medical records, 24 pp. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

R. [Redacted]’s Physical Education Curriculum Map, Grading Sheet and Email from [Redacted]

regarding [Student]’s progress, 6 pp. S. Letter from [Redacted], 2/21/12, 1 p. T. Committee Meeting Information, 12/7/12, 2 pp. U. Evaluation by the [Redacted] S.D., 8/17/12, 11 pp. V. Evaluation by Dr. [Redacted], 10/2012, 15 pp. W. Email re Nurse’s File with attached documents, various dates, 40 pp.

X. MARKED FOR IDENTIFICATION ONLY 15

Y. MARKED FOR IDENTIFICATION ONLY

Z. [Redacted] Severity Rating Scale, 11/25/11, 2 pp. AA. [Redacted]’s Attendance Records, 2012-2013 school year, 2 pp. BB. Invoice and Payment Records for [Student] from [Redacted] Academy, 3 pp. CC. [Redacted]’s Physical Education and Health Logs rom 9/10/12 through 9/24/12, 3 pp. DD. [Redacted]’s Grade 11, Semester 1 Progress Reports, 5 pp. EE. [Redacted]’s Grade 11, Semester 2 Progress Reports, 5 pp. FF. [Redacted]’s Individual Reassessment of Commitment with Student Self-Evaluation, 4 pp. GG. [Redacted]’s Proof of Completion Forms for PE and Health, 5/2013, 2 pp. HH. End of Course Confirmation, various dates in June 203, 4 pp.

IHO EXHIBITS

I. Due Process Complaint, 2/25/2013, 9 pp. II. District’s Notice of Insufficiency and Motion to Dismiss (including attached Exhibit A and Affidavit of Service), 3/13/13, 16 pp. III. District’s Response to Due Process Complaint (and attached Exhibit A and Affidavit of

Service), 3/7/16, 27 pp. IV. District’s Due Process Complaint, 5/30/13, 11 pp. V. Parent’s Response To District’s Due Process Complaint (and attached Exhibit A), 6/18/13, 12 pp. VI. Decision and Order on School District’s Notice of Insufficiency and Motion to Dismiss, 3/19/13, 5 pp. VII. District’ Motion to Consolidate, 6/7/12, 3 pp. VIII. Email from IHO granting Motion to Consolidate, 6/12/13, 1 p. IX. Email from IHO [Redacted] re case consolidation, 6/13/13, 1 p. X. District Confirmation of IHO Appointment, 2/27/12, 1 p. XI. Letter from IHO (and attached policy statement), 2/28/13, 200. Parent Exhibits X and Y were marked for identification but were never admitted into evidence. Exhibit X was marked for ID at Tr. 566 (see also Tr. at 573), Exhibit Y was marked for ID at Tr. 959. The Parents did not request that the exhibits be admitted into Evidence. The documents are not, therefore, included in the Hearing Record. Impartial Hearing in the Matter of [Student], by [Redacted] and [Redacted], his parents, v. the [Redacted] School District

XII. Letter from [Redacted], Esq. re the end of the resolution session, 3/22/13, 1p. XIII. Email from IHO re IHRS data and compliance date extension, 4/8/13, 1 p. XIV. Email from IHO re IHRS data and compliance date extension, 6/12/13, 1 p. XV. Email from IHO re IHRS data and compliance date extension, 6/26/13, 1 p. XVI. Email from IHO re IHRS data and compliance date extension, 8/30/13, 1 p. XVII. Email from IHO re IHRS data and compliance date extension, 9/13/13 (corrected 10/8/13), 1 p. XVIII. Memorandum of Law (Parents), 10/18/13, 30 pp. (including cover page, table of contents, and back page) XIX. Brief of the [Redacted] School District, 10/18/13, 34 pp. (including cover page, table of contents, and table of authorities)