Impartial Hearing Decision

FINDINGS OF FACT & DECISION

IHRS Case Number: 502516

Student Name: pe

Date of Birth: September 14, 1998

District: ae... District

Hearing Requested By: Parent

Dates of Hearings June 15, 2017

June 16, 2017

July 6, 2017

August 11, 2017

Actual Record Cldse Date: November 14, 2017

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 15, 2017

For the Student:

JOHN C. WIRTH, JR., ESQ., Attorney

For the District:

KATE S. HOWARD, ESO.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 16, 2017

For the Student:

| oo

For the District:

kK

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 6, 2017

For the Student:

JOHN C. WIRTH, JR., ESQ., Attorne

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 11, 2017

For the Student:

JOHN C. WIRTH, JR., ESQ., Attorney

For the District:

KATE S. —— — a

I, JURISDICTION - OVERVIEW OF ADM NISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-14 82, and Article 89 of the New York State Education Law. This hearing was originally req nested by the parent of the student in a due process complaint dated December 29, 2016. T he primary issue to be determined at this hearing is whether the PE «:.0: District (the “District”) provided the student with a free appropriate public education (“FAPE”) in the two (2) years preceding the District’s receipt of the parent’s complaint on January 6, 2017 (Exs. IHC )-I, IHO-II, IHO-V).'

When a student in New York is eligible { lor special education services, the IDEA calls for the creation of an individualized education progy am (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) th at includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); B4 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Edud . Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).

New York State has implemented a two-t iered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placeme nt of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such

‘References to the hearing transcript are noted ag “R.” References to exhibits admitted into evidence are noted as “Ex,” student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“THO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certai other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses: prohibit the introduction of any evidence at the earing that has not been disclosed five (5) business days before the hearing; and obtain a vi prbatim record of the proceeding. See 20 U.S.C.

§§ 1415(£)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.52 1(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R.

§§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 2 00.5G)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO m ay grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYC RR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See} N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y.

Educ. Law § 4402(2); see also 20 U.S.C. § 1415 g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR §

200.5(k).

II, PROCEDURAL HISTORY

On January 11, 2017, I was appointed by the District to serve as the IHO in this matter.

See 8 NYCRR § 200.5(j)(3)(i). In a Response to Impartial Due Process Hearing Request, dated January 17, 2017, the District asserted that it was in compliance with all applicable statutes and regulations pertaining to students with disabilitie: , including the IDEA and the Dignity for All Students Act (“DASA”) (Ex. IHO-II at 2-3). See > 8 NYCRR §§ 200.5(i)(4), (5).

In a letter dated January 18, 2017, the Di strict moved to dismiss the parent’s due process complaint as insufficient. See 8 NYCRR §§ 200 .5(1)(3), (6). In an Interim Order on Sufficiency dated January 20, 2017, I concluded that the par¢ pnt’s due process complaint failed to provide adequate notice of the nature of the problem, inc luding facts relating to the problem, or a proposed resolution to the problem. Having bee n advised that the parent had retained counsel, I directed the parent to file a legally sufficient due process complaint (Ex. IHO-IV at 4). See 8 NYCRR § 200.5(i)(6)(ii).

On February 8, 2017, the parent filed an | Amended and Supplemental Complaint. See 8 NYCRR § 200.5(i)(7). In a Response to Imparti al Due Process Hearing Request, dated February 22, 2017, the District again asserted that it was it h compliance with all applicable statutes and regulations pertaining to students with disabilitie s, including the IDEA and DASA (Ex. IHO-VI at 4). See 8 NYCRR §§ 200.5(i)(4), (5).

Hearings in this matter were thereafter he Id on: June 15, 2017, June 16, 2017, July 6, 2017, and August 11, 2017 (R. 1, 270, 499, 664; Exs. IHO-VIII, 1HO-IX, IHO-X).’ Appended to this decision are: a statement of appeal rights; a | ist of the persons in attendance at the hearings; and a list of the documents received into evidenc e. See 8 NYCRR§ 200.5(j)(5)(v).

Following my appointment to this case, the part es moved to extend the case compliance date in this matter several times in order to accommodate the schedules of thi e parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the exte nsive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative in npact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 23-24, 660-661; Exs.

1HO-VII, IHO-XI, IHO-XIII - IHO-XVIN).

Ill. FACTUAL BACKGROUND

At the time of the December 29, 2016 due process complaint, the student was eighteen (18) years old and has been diagnosed with Aspe rger’s Syndrome, an Attention Deficit Hyperactivity Disorder (“ADHD”), and a Sensot ry Integration Disorder (Exs. P-A at 1-2, 10, SD-4 at 1, SD-15 at 1-2, SD-6 at 2, SD-13 at 1, SD-14 at 1-2, SD-16 at 1-2, 6, IHO-I). For the 2016/17 school year, the student attended the twelfth (12' ) grade at thei on School (Exs. SD1, SD-2, SD-19, SD-23). The student’s eligibilit ry for special education and related services as a student with a disability is a component of the ps urties’ dispute in this hearing (Exs. IHO-I, IHO-I, THO-V, IHO-VI).* See 34 C.F.R. § 300.8(c); 8 ] NYCRR § 200.1(zz).

The student was evaluated by Early Inter vention in January 2001 and classified within the BE s::.01 District as a preschool student with a disability. The student first attended a half-day preschool program iii The student also attended a P preschool class CO where he received speech therapy, occupational therapy, and physical therapy services. The student then atter of age. In May of 2003, after one year of pre-kin dergarten at the BE s-2001 (when the 3 Student with a disability means a student with a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to Septemb; pr 1 and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because o f mental, physical or emotional reasons, has been identified as having a disability and who requires special services ar d programs approved by the department. 8 NYCRR § 200.1(zz).

‘Preschool student with a disability is a preschog b| child as defined in section 4410(1)(i) of the Education Law who is eligible to receive preschool programs ans set vices, who is not entitled to attend the public schools of the school district of residence pursuant to section 3202 of th¢ + Education Law and who, because of mental, physical, or emotional reasons, has been identified as having a disabil ty and can receive appropriate educational opportunities from special programs and services approved by the depa ttment. Eligibility as a preschool student with a disability shall be based on the results of an individual evaluation w hich is provided in the student’s native language, not dependent on a single procedure, and administered by a m ultidisciplinary team in accordance with all other requirements as described in section 200.4(b)(1) through 5) of this Part. 8 NYCRR § 200.1(mm).

B was five years old), he was identified at an aging ~in preschooler with a disability who would remain in pre-kindergarten for another year. As a result, he received special services including indirect consultant teacher, occupational therapy and speech/language therapy for the during of his second pre-kindergarten year a | In May of 2004, prior to entering kindergarten 7 student was reevaluated and it was determined that he would receive behavior therapy and continue with occupational therapy ¢ ind speech/language therapy for the 2004/05 school year as a student with a speech or languas re impaired classification.* The student was declassified in May of 2005 at the end of kinder rarten and services were discontinued (Exs. P-A at 2, SD-14 at 2).

The student was diagnosed with ADHD im the Spring of 2006 (Ex. SD-13 at 1). The student was referred to the P| CSE for ey valuation by his mother. A psychoeducational assessment was conducted in August 2006. The student’s cognitive functioning was measured using the Woodcock-Johnson III Tests of Cognit ive Abilities. The student obtained a General

Intellectual Ability Score of 98 (46" percentile), placing him in the Average range of cognitive functioning. No discrepancies were found amon g the student’s cognitive abilities (Verbal Ability

- 100; Thinking Ability - 98; Cognitive Efficienc y - 96). The student’s social-emotional functioning was measured using the Behavior Ag sessment System for Children (BASC). The results of behavior checklists completed by the st rudent’s mother and classroom teacher revealed more maladaptive behaviors at more severe level s in the home environment. The student did not appear to exhibit similar behaviors at school (Ex 5. P-A at 2, SD-16 at 5).

> Speech or language impaired means a commun} cation disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversel} y affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).

The student’s father passed away in Augy ast 2007 (Ex. SD-14 at 1). The student entered ine 001 District in fourth ( 4") grade (2008) where he began to receive accommodations (e.g., extended time, flexible s¢ tting, and separate location for math texts/exams) via a Section 504 Plan, which was reviewed ann hally. The student completed the fifth (5") grade at the BB 2 emnentary School, where he w as placed as a non-classified student in an inclusion classroom (Exs. P-A at 1-2, SD-13 at ] ).

In July 2010 the parent referred the stude nt to the Center for Spectrum Services for a psychological evaluation. The student’s parent 4nd grandparent were interviewed utilizing the Autism Diagnostic Interview - Revised (“ADI-RI *), a standardized instrument that systematically gathers information about developmental pattern s relevant to a diagnosis along the autism spectrum. The ADI-R assesses development in the areas of communication, socialization, play and behavior in individuals with known or susp¢ cted Autism Spectrum Disorders. From the interviews, it was reported that the student had difficulty with reciprocal conversation; he tended to be overly talkative and monopolize the interaq tion without allowing the other person to participate. The student also missed social cues (particularly from peers), and his talkativeness, loud speech, and tendency to want to be in charg e was burdensome to other children.

Notwithstanding those deficits, the student playe d a number of sports, including baseball and golf (Ex. P-A at 3-4).

The student was also administered the Cc mners’ Parent Rating Scale - Revised and the Conners’ Teacher Rating Scale - Revised to asse ss functioning on thirteen (13) behavioral scales.

While the student did not evidence any clinically significant scores on the parent scale, he fell in the clinically significant range on several behavi( br measures as reported by his teacher. Significant scores on this measure indicated that the student was more likely than peers his age and gender to have low self-esteem and self-con fidence and to feel socially detached from peers and to be more restless, impulsive and inattentiv e than was typical (Ex. P-A at 6).

The student was also administered the Speial Responsiveness Scale (“SRS”), a questionnaire completed by a parent or teacher t! nat covers the various dimensions of interpersonal behavior, communication and repetitive/stereoty pic behavior that are characteristic of autism spectrum disorders. The Total Score on the SRS > is a quantitative measure of autistic symptomathology. The student’s Total T-score pt 72 on the questionnaire completed by his teacher fell within the mild-to-moderate range o} n this measure. Scores in this range indicate deficiencies in reciprocal social behavior that ary > Clinically significant and are resulting in mild to moderate interference in everyday social interact ions. Such scores are typical for children with mild or “high functioning” autism spectrum cont Hitions, such as Pervasive Developmental Disorder - Not Otherwise Specified (“PDD-NOS ”) or Asperger’s Syndrome. The student’s Total

T-score of 51 on the questionnaire completed by his parent fell within the normal range (Ex. P-A at 6).

The student was also administered the Di fferential Abilities Scales (“DAS-II”), a standardized battery of verbal and nonverbal tas] cs for children that yield an overall General

Conceptual Ability Score (“GCA”). The student obtained a GCA score of 102, placing him in the Average range of cognitive abilities (Ex. P-A at 7).

Lastly, the student was also evaluated using the Autism Diagnostic Observation Schedule (“ADOS”), a standardized assessment of commu nication, social interaction and play for individuals with known or suspected autism sped trum disorders. The student spoke at an age-appropriate level, but his communication was m arked by some abnormalities typical of children on the autism spectrum, including jerky/irregula r rhythm to his speech, with odd intonation, unusual turns of phrase and difficulties with reciprocal conversation (he often monopolizes interactions), While the student initiated a good deal of social interactions during the ADOS, he demonstrated a lack of consistent eye contact, ur jusual facial expressions, awkward social overtures and responses, and limited insight into typical social relationships. The student demonstrated no unusual sensory interests of compulsive/ritualistic behaviors during the ADOS.

The evaluator found the results of the ADOS we re consistent with a diagnosis on the autism spectrum, specifically Asperger’s Syndrome (Ex! . P-A at 9-10).

On May 16, 2014, the District’s Section | 504 Committee convened to develop an Accommodation Plan for the student for the 201 4/15 school year (the student’s tenth grade). The Section 504 Committee recommended that the st rudent receive program accommodations of: preferential seating near teacher, prompting to st ay on task, and refocusing and redirection. The Section 504 Committee also recommended testing accommodations of extended time (.5) and flexible setting (Exs. SD-4 at 2, SD-21 at 2).

On May 11, 2015, the District’s Section | 04 Committee convened to develop an Accommodation Plan for the student for the 201 5/16 school year (the student’s eleventh grade).

The Section 504 Committee recommended that t he student receive program accommodations of: preferential seating, prompting to stay on task, ahd refocusing and redirection. The Section 504 Committee also recommended testing accommos lations of: extended time (.5), flexible setting, and separate location for math exams (Exs. SD-S at 2, SD-14 at 2, SD-21 at 3).

In a letter dated April 18, 2016, the stude nt’s mother requested an evaluation of her son by the CSE (Ex. SD-9). The parent provided her in formed written consent for evaluation of the student by the CSE on May 12, 2016 (Ex. SD-1 ). In a letter dated June 23, 2016, the student’s mother requested that a speech/language evaluat on of the student be conducted as part of the initial referral (Ex. SD-11).

On June 29, 2016, the student participate in a psychoeducational evaluation conducted by P Ms. O’ Loughlin noted that the student’s then-current education program included Regents, honors and International Bacc} nlaureate (IB) level courses. The student’s 2015/16 report cards indicated good academic standing and teacher comments were positive for all marking periods. Teacher Feedback Forms c¢ ympleted by the student’s teachers revealed satisfactory performance as well (Ex. SD-14 at 2 +3).

The student’s cognitive functioning was 1 neasured using the Woodcock-Johnson IV Tests of Cognitive Abilities. The student’s General Infellectual Ability score of 96 fell in the Average range. The student demonstrated a relative stren}bth on tasks that measured his ability to reason, from concepts, and solve problems using unfamil liar information or novel procedures. Tasks that required working memory, attention, and phonolt gical processing were noted as areas of weakness (Ex. SD-14 at 6, 11).

The student’s educational achievement w: AS measured using the Woodcock-Johnson IV Tests of Achievement. The student’s Board Achi evement score of 101 fell in the Average range and indicated that his academic functioning was J Average when compared to peers his age.

His scores across the Broad Domains (i.e., Math - 11( ), Reading - 93, Written Language 100) fell in the Average range as well. The student’s academ ic skills, ability to apply those skills, and his fluency with academic tasks were also in the Av prage range. He demonstrated Above Average academic ability on the Math Facts Fluency - 11) 8, Sentence Writing Fluency - 114, and Applied Problems - 112 subtests. Overall, the student we is functioning at grade level when compared to his peers in the areas of math, reading, and writing (Ex. SD-14 at 6-7).

Ratings regarding the student’s social-err otional, executive, and adaptive functioning varied and it appeared that greater concerns were observed in the home setting, rather than the academic setting (Ex. SD-14 at 7-12).

On July 25, 2016, the student participatec 1 in a speech and language evaluation conducted

» On the Comprehensive > Assessment of Spoken Language (“CASL”), the student achieved a supralinguistic standard sc tore of 97 (Average range). Subtest results indicated that the student was able to understand non-literal language, gain meaning from context, understand inferences, and use appropriate pragn hatic judgment. While understanding inferences was the student’s weakest area, it was within not mal limits. The student’s phonological processing, as assessed by the Comprehensive Ts est of Phonological Processing - Second Edition (“CTOPP-2"), measured in the Below Average rj ange (Phonological Awareness Composite Score

- 80). While this did not seem to overly impact

I is ability to read, it supported his need for extra time to decode unfamiliar words and process information (Ex. SD-13 at 1-3).

The CSE convened on August 31, 2016 t consider the student’s eligibility to receive special education services. The data before the ¢ LSE indicated that the student’s cognitive levels were in the average range and that he was on trac k to obtain a Regents diploma. The CSE determined that the student did not meet the crite ria for classification, which would necessitate specialized instruction and/or related services. F rom the evaluation results, teacher input, family input, and academic performance indicators, tha CSE concluded that the student was able to access, participate and achieve in his academic getting without special education accommodations and/or services. The CSE recommended that the Section 504 Committee reconven e and revise the student’s Section 504 Accommodations Plan in light of the evaluations conducte d as part of the initial referral (Exs. SD-7 at 1, SD-8).

On September 13, 2016, the District’s Sdction 504 Committee convened to develop an Accommodation Plan for the student for the 2016/17 school year (the student’s twelfth grade). The Section 504 Committee recommended that the student receive related services of individual counseling, one time per month for thirty (30) minutes per session, and individua l speech-language therapy, two (2) times per month for th irty (30) minutes per session.

The Section 504 Committee also recommended that the student rdceive program accommodations of: preferential seating, prompting to stay on task, and refocusing and redirection. Lastly, the Section 504 Committee recommended testing accommodations of: extended time (.5), flexible setting, and separate location for large tests/exams (Exs. SD-6 at 2, SD-21 at 4).

The parent objected to the ineligibility finding of the August 2016 CSE and disputes the efficacy of Section 504 accommodations provided to the student throughout high school. The parent claims that the student was denied a FAPH and was bullied by school peers due to his disability. This hearing ensued (Exs. IHO-I, IHO rV).

IV. POSITIONS OF THE PARTIES

A. School District

In light of the student’s graduation from high school with a Regents diploma, the matter should be dismissed as moot. Alternatively, the district met its child find obligations and its CSE correctly concluded that the student did not mee! t the required criteria for IDEA classification.

The District provided the student with a FAPE t] nrough various Section 504 Accommodations

Plans. The District also disputes that the student was subjected to a level of peer bullying which I denied him a FAPE (R. 25-32; Ex. IHO-XIX).

B. The Parent

The parent seeks a declaratory judgment that the student was denied a FAPE, as he was entitled to an IEP, or a Section 504 Plan with apy propriate interventions, while he attended the Red

Hook High School. The student was bullied con tinually throughout high school which also deprived him of a FAPE (R. 34-36, 396-400; Ex | THO-XX).°

V. FINDINGS OF FACT AND CONCLUSIC INS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C . §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free ap propriate public education (“FAPE”’) that emphasizes special education and related service s designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v . T.A., 557 U.S. 230, 239 (2009); Board of Educ.

of the Hendrick Hudson Cent. Sch. Dist. v. Rowl py, 458 U.S. 176, 206-07 (1982).’

The parent’s claim for compensatory education for the student was withdrawn at the hearing (R. 821; Ex. IHO-V).

The term “free appropriate public education” m eans special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational a pency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individu plized education program required under section 1414(d)

1 1

A FAPE is offered to a student when: (a| the board of education complies with the procedural requirements set forth in the IDEA; d jad (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to e1 nable the student to receive educational benefits.

See Rowley, 458 U.S. at 206-07; H.C. v. Katona h-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New ¥ brk City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 ( U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012 ); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

“[A]dequate compliance with the proced ures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Walczak v.

Florida Union Free Sch. Dist., 142 F.3d 119, 12 9 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. ; Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and he Ss indicated that "[m]Jultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA , MH, 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhine beck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir.

2003); Perricelli v. Carmel Cent. Sch. Dist., 200 7 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 3¢ 0.17.

] student's right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.SIC. § 1415(£)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; AIH. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 |WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. §

1415(£)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to|benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an|"appropriate" education, "not one that provides everything that might be thought desirable by loying parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 UjS. at 189, 199; Endrew F. v. Douglas County Sch, Dist. RE-1, 580 U.S. __, 137 S.Ct. 988, 998-1001 (2017) (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,' and. . . affords the student with an opportunity greater than mere ‘trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130);|see also T.P., 554 F.3d at 254; P. v, Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); s¢ é also Rowley, 458

U.S. at 192.

The student's recommended program must

UB also be pprovided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)¢ 5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a) (1); see also Newingto n, 546 F.3d at 114; Gagliardo v, Arlington Cent. Sch. Dist., 489 F.34 1 105, 108 (2d Cir.

2007); Walezak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 J . Supp. 2d 552, *

573-80 (S.D.N.Y. 2010), aff'd, H

2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board d Educ., 583 F. Supp.

Pp 2d 422, 428 (W.D.N.Y. 2008).

An appropriate educational program begil ns with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlo’ we v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or he ‘ to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2) (i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special educat: on services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR§ 200.4(d)(2)(v).

The burden of proof is on the school dis rict during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Mootness

The parent’s claims raised in the amende d due process complaint are now moot (Exs. IHO-V, IHO-VI at 2-3). It is well settled that th dispute between the parties must at all stages be y d

"real and live," and not "academic," or it risks be coming moot. See Lillbask

v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Fatskin v. Bd. of Educ., 583 F.

Supp. 2d 422, 428 (W.D.N.Y. 2008); J.N. v. Depew Union Free Sch . Dist., 2008 WL 4501940, at *3-*4 (W.D.NLY. Sept. 30, 2008); see also Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). Mootness m: uy be raised at any stage of litigation. See Jn re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). A cag e becomes moot when the parties lack a legally cognizable interest in the outcome. See Murphy y. Hunt, 455 U.S. 478, 481 (1982). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief. See Chri stopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990).

Administrative decisions rendered in case s that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student. See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2¢ | 1036, 1040 (Sth Cir. 1989); M.S. v. New York

1} City Dept. of Educ., 734 F. Supp. 2d 271, 280-81 ( E.D.N.Y. 2010). In general, cases dealing with issues such as desired changes in IEPs, specific plz cements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See V.M. v. No. Colonie Cent. Sch. Dist., 2013 WL 318706 ¢ , at *13-*15 (N.D.N.Y. June 20, 2013); |

Application of a Student with a Disability (New Y brk City Dep’t of Educ.), Appeal No. 12-205 at 8 (SRO July 31, 2014).

The case is now moot as there is no live co ntroversy nor meaningful relief that I can grant the student at this time. The evidence contained ir the hearing record reflects that the disputed school years have expired and that the student grac luated from high school with a Regents diploma and is now attending college (Exs. SD-1, SD-2, SD-3, SD-19, SD-23). At the hearing, counsel for the student and parent acknowledged tl hat the issue of whether the student was entitled to an IEP and never received one “‘is kind of a mogq t issue,” and that “the only real issue here. .. within terms of a declaratory judgment is whether br not, in fact, my client was entitled during the years that he was a student at Red Hook High School to an IEP” (R. 34-36). The parent, however has failed to cite or point to any authority indicatin g that an IHO or SRO should proceed with resolution of a claim where the sole remedy sough t is declaratory relief. See Application of a Student with a Disability (Chappaqua Cent. Sch. 1 ist.), Appeal No. 13-212 at 16 (SRO Jan 8, 2014), Alternatively, while a claim may not be m ot despite the end of a school year for which a student's IEP was written, if the conduct complain ed of is "capable of repetition, yet evading review," see Honig v. Doe, 484 U.S. 305, 318-23 ( 1988); Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040, that exception applies only in limited situations, see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), which are not present here. Given the student’s graduation, there are no circumstances in which the student would be further evaluated by the District’s CSE or seek educational services of any kind from the District. While the amended due process complaint included a claim for compensatory eduration (Ex. IHO-V at 16),* which can survive a mootness challenge as it presents an ongoing and live controversy beyond a student’s graduation, see, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No.

14-179 at 9 (SRO March 26, 2015); Application Y a Student with a Disability (Orchard Park Cent. Sch. Dist.), Appeal No. 13-189 at 7 (SRO Alpril 10, 2015), that claim was withdrawn during the hearing (R. 821).?

C. Statute of Limitations

Notwithstanding my finding that this matter is moot, I will review the merits of the parent’s claims and the school district’s defenses.} The parent’s due process complaint alleges that the student was denied a FAPE for the 2013/14, 2/(014/15, 2015/16 and 2016/17 school years (Exs.

IHO-I, IHO-V, IHO-VI at 2). The District asserts|that any claims arising prior to January 6, 2015

8 Compensatory education is a form of relief avail ble where there has been a denial ofa FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 3 1014); French v. New York State Dep't of Educ., 476 Fed. Appx 468, 471-72 (2d Cir. Nov. 3, 2011); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is an equitable remedy that is tail bred to meet the unique circumstances of each case. See Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 1 0-51 (N.D.N.Y. 1997), aff'd 208 F.3d 204 (2d Cir. 2000), cert. denied 531 U.S. 1019 (2000). Within the Sec ond Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation f there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a bubstantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 204 8); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988).

*In any event, given the fact that graduation and r , ceipt ofa high school diploma are generally considered a strong evidence of educational benefit, taken together with the Second Circuit’s high standard requiring the presence of a gross violation of the IDEA prior to an award of comp ensatory education, it would appear that it would be the rare case where a student graduates with a high school dip] pma and yet still qualifies for an award of compensatory education. See Application of the Bd. of Educ. of the Shen endehowa Cent. Sch. Dist., Appeal No. 05-037 n.2 (SRO May 12, 2005). are barred by the relevant statute of limitations (E} k. IHO-XIX at 8).

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that form s the basis of the complaint. See 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)B) ; N.Y. Educ. Law § 4404(1)(a); 34 C.F.R. §

300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 (2d Cir. 2008) (noting that the Second Cir cuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress); M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 (2d Cir. 2003).''

In this case, the parent filed her original du € process complaint notice on January 6, 2017 (Exs. IHO-I, IHO-I at 1). Thus, any of the parent s claims that accrued after January 6, 2015 which form the basis for her due process complair it are timely raised. Any allegations raised by the parent concerning events prior to January 6, 2( 15 (e.g., events occurring during the 2013/14 school year) are barred by the relevant statute of li mitations.

D. Child Find

The parent asserts that the District violated its child find obligations (Exs. IHO-I, IHO-V, THO-VI at 2, IHO-XX). The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. See Handberry v. Thompson, 446 F.3d 335, 347-48 (2d Cir. 2006); E.T. v. Bd. of Educ., 2 012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, ‘New York State has not explicitly established a c ifferent limitations period since Congress adopted the two (2) year limitations period. 2012); A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff'd, 370 Fed.

App'x 202 (2d Cir. Mar. 23, 2010); see also 20 U S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111; 8 NYCRR §§ 200.2(a)(1), (7). The IDEA places ar | ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special ¢ ducation services." See 20 U.S.C. § 1412(a)(3); 34 CFR. § 300.111(a)(1)(i); Forest Grove, 557 { J.S. at 245; E.T., 2012 WL 5936537, at *11; see also 20 U.S.C. § 1412(a)(10)(A)(ii); 8 NYCRR § 200.2(a)(1), (7); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 (N.D.N Y. 2004). The "child find" requirements apply to "children who are suspected of being a child w th a disability ... and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. § 300.111(c)(1); see 8 NYCRR § 200.2(a)(1), (7); D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); JS. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 (S.D.N.Y. Nov. 18, 2011). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. See 3 4 CFR. § 300.111(a)(1); 8 NYCRR §

200.2(a)(1), (7).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the school district evaluate their c [.. may not ignore disabled students' needs, ld. See Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (noting that "[s]chool nor may they await parental demands before prov, ding special instruction").'' A school district's child find duty is triggered when the school distri¢ tt has "reason to suspect a disability and reason

"l However, a student may be referred by a student ‘8 parent or person in parental relationship. See 34 C.F.R. § 300.301(b); 8 NYCRR § 200.4(a)(1)(i); see also 8 NYCH LR §§ 200.1 (4i)(1)-(4). State regulations do not prescribe the form that a referral by a parent must take, but do requir p that it be in writing. See 8 NYCRR § 200.4[a]. to suspect that special education services may be needed to address that disability." See J.S., 826 F. Supp. 2d at 660, quoting New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13.

Additionally, the "standard for triggering the Child Find duty is suspicion of a disability rather than factual knowledge of a qualifying disability. ' Reg Sch. Dist. No. 9 Bd. of Educ. v. Mr. and Mrs. M., 2009 WL 2514064, at *12 (D. Conn. Au ig. 7, 2009). To support a finding that a child find violation has occurred, "the [d]istrict must he ive ‘overlooked clear signs of disability’ or been ‘negligent by failing to order testing,’ or there must have been 'no rational justification for deciding not to evaluate See J.S., 826 F. Supp. 2d at 661, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007); see also A.P., 572 F. Supp. 2d at 225,

Related to child find is the referral proces: s. State regulation requires that a student suspected of having a disability "shall be referred in writing" to the chairperson of the district's

CSE—r to a "building administrator" of the schq ol in which the student attends—for an "individual evaluation and determination of eligit pility for special education programs and services" See 8 NYCRR § 200.4(a).’* Ifa "buildi ng administrator" or "any other employee" of a school district receives a written request for refer al of a student for an initial evaluation, that individual is required to immediately forward the request to the CSE chairperson and the school district must, within ten (10) days of receipt of th e referral, request the parent's consent to initiate the evaluation of the student. See 8 NYCRR §§ 2 00.4(a)(2)Gi), (a)(2)(iv)(a), (a)(3)-(a)(5); see also 34 C.F.R. § 300.300(a). State regulation also provides that, upon receivinga referral, a building administrator may request a meeting wit h the parent and the student (if appropriate) to '2 4 school district "must initiate a referral and prd ymptly request parental consent to evaluate the student" to determine whether the student needs "special education sex vices and programs if a student has not made adequate progress after an appropriate period of time when provided instruction” in a school district's response to intervention (“RtI”) programs. See 8 NYCRR § 200.4(a); see also 8 N) yCRR § 100.2(ii). determine whether the student would benefit from additional general education support services as an alternative to special education, including sf eech-language services, academic intervention services (“AIS”), and any other services designed to address the learning needs of the student.

See 8 NYCRR § 200.4(a)(9). Any such meeting r pust be conducted within ten (10) school days of the building administrator's receipt of the referral and must not impede the CSE from continuing its duties and functions. See 8 NYCRR §§ 200.4( a)(9)(ili)(a)-(b).

In this case, the issue presented is whether , upon the facts presented, the student should have been referred to the CSE prior to April 2016 because there was reason to suspect a disability and reason to suspect that special education servid es may be needed to address that disability. I find that the District met its child find obligations with respect to this student. The evidence contained in the hearing record reflects that the st ident received Section 504 accommodations to support his academics and peer interactions since his entry into the District in 2008 (fourth grade) (Exs. SD-4, SD-5, SD-6, SD-9, SD-13 at 1, 3, SD +20, SD-21). The student’s academic, social, and physical development was reviewed and/or re evaluated by the District’s Section 504 Committee annually (Exs. SD-4, SD-5, SD-6). T! he District promptly processed the parent’s April 18, 2016 CSE referral and, at the request of the pz rent, supplemented its standard battery of evaluations to include a speech/language evaluati« bn (R. 679-680; Exs. SD-7, SD-8, SD-10, SD11, SD-12, SD-13, SD-14, SD-15,). The student progressed very well in the general education curriculum with the accommodations provided by the District in its Section 504 Accommodations

Plans (Exs. SD-1, SD-2, SD-14 at 2-3, SD-19, su -23). There is also no evidence in the record that the District did not have adequate child find i srocedures in place (Exs. SD-18, SD-22).

E. Eligibility

The parent asserts that the student should have received an IEP while he attended high school (Exs. IHO-I, IHO-V at 14, IHO-VI at 2, Ik 1O-XX at 37). The IDEA defines a "child with a disability" as a child with a specific physical, met ntal or emotional condition, "who, by reason thereof, needs special education and related servi bes." See 20 U.S.C. § 1401(3)(A); N.Y. Educ. Law §§ 4401(1), (2)(k). In order to be eligible for special education and related services, a student must not only have a specific physical, mental or emotional condition, but in most of the disability categories enumerated under the IDEA, such condition must adversely affect or impact upon a student's educational performance to the ¢ xtent that he or she requires special services and programs. See 34 C.F.R. §§ 300.8(a), (c); see also 8 NYCRR § 200.1(zz).

Assuming for the sake of argument that th e student met the initial criteria to be deemed eligible as a student with either autism or an othe y health impairment (“OHI”) based on his undisputed diagnoses of Asperger’s Syndrome, A DHD, and Sensory Integration Disorder, a determination must also be made regarding the sé cond criterion for these two particular disability categories: whether the student's purported condi lions or deficits adversely affected his educational performance (Exs. P-A at 1-2, 10, SD )-4 at 1, SD-15 at 1-2, SD-6 at 2, SD-13 at 1, SD-14 at 1-2, SD-16 at 1-2, 6, IHO-I, IHO-XIX at 12)."3 See 8 NYCRR §§ 200.1(zz)(1), (10).

'3 Autism means a developmental disability signifi cantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adv rrsely affects a student's educational performance.

Other characteristics often associated with autism are engagemer t in repetitive activities and stereotyped movements, resistance to environmental change or change in daily rout nes, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this s ibdivision. A student who manifests the characteristics of autism age 3 could be diagnosed as having autism if the cr teria in this paragraph are otherwise satisfied.

8 NYCRR § 200.1(zz)(1) (emphasis added).

Other health impairment means having limited st rength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited al ertness to the educational environment, that is due to P For the reasons set forth below, the hearing recor: 1 supports the conclusion that the student was not eligible for special education and related serv ices because the hearing record does not demonstrate that the student's conditions or defic its adversely affected or impacted his educational performance.

1. Adverse Educational Impact

Whether a student's condition adversely a ffects his or her educational performance such that the student needs special education within th e meaning of the IDEA, is an issue that has been left for each state to resolve. See J.D. v. Pawlet § ich. Dist., 224 F.3d 60, 66 (2d Cir. 2000).

Although some states elect to establish further, mH ore explicit definitions for these terms, often through regulation or special education policy, se é, e.g., Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 11 (1st Cir. 2007); J.D., 224 F.3d at ¢ 16-67; Johnson v. Metro Davidson Cnty. Sch.

Sys., 108 F. Supp. 2d 906, 918 (M.D. Tenn. 2000 ), others do not and instead resolve the issue on a "case-by-case" basis, see, e.g., R.B. v. Napa Valle ty Unified Sch. Dist., 496 F.3d 932, 944 (9th Cir.

2007; Yankton Sch. Dist. v. Schramm, 93 F.3d 13169, 1375-76 (8th Cir. 1996); Greenland Sch. Dist. v. Amy N., 2003 WL 1343023, at *8 (D.N.H |. Mar. 19, 2003).

Cases addressing this issue in New York 3 appear to have followed the latter approach. See

Corchado v. Board of Educ. of the Rochester Cit y Sch. Dist., 86 F. Supp. 2d 168, 176 (W.D.N.Y.

2000) (holding that each child is different and the effect of each child's particular impairment on his or her educational performance is different); J aus v. Wappingers Cent. Sch. Dist., 688 F.

Supp. 2d 282, 294, 297-98 (S.D.N.Y. 2010) (emg hasizing that educational performance is focused 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 toure tte syndrome, which adversely affects a student's educational performance. 8 NYCRR § 200.1(zz)(10) (emphasis added).

2B on academic performance rather than social development or integration); see also C.B. v. Dep't of Educ., 2009 WL 928093 (2d Cir. April 7, 2009) ( finding insufficient evidence that student has suffered an adverse impact on educational perfo ance because the student continuously performed well and tested above grade level on t e district's psychoeducational evaluation and a psychological evaluation); Muller v. East Islip Ui ion Free Sch. Dist., 145 F.3d 95, 103-04 (2d Cir. 1998); A.J. v. Bd. of Educ., 679 F. Supp. 2d 99, 308-11 (E.D.N.Y. 2010) (noting the difficulty of interpretation of the phrase "educati al performance" and that it must be "assessed by reference to academic performance which app ars to be the principal, if not only, guiding factor"); N.C. v. Bedford Cent. Sch. Dist., 2008 4874535 (2d Cir. Nov. 12, 2008) (holding that there is insufficient evidence that the student educational performance was adversely impacted because the student did not fail any of is classes and his grade-point average (GPA) declined only nine points); New Paltz Cent. Sch. ] Dist. v. St. Pierre, 307 F. Supp. 2d 394, 399 (N.D.N.Y. 2004); Eschenasy v. New York City De ppt of Educ., 604 F. Supp. 2d 639, 649-50 (S.D.N.Y. 2009) (finding that the SRO's conclusi bn that there was insufficient evidence of an adverse effect on the student's educational perfort nance was "directly contradicted by [the student's] failing grades, repeated expulsions, sus| pensions, need for tutors and need for summer school); W.G. v. New York City Dep't of Educ., 8( )1 F. Supp. 2d 142, 170-75 (S.D.NLY. 2011) (finding insufficient evidence that the student's "academic problems —which manifested chiefly as truancy, defiance and refusal to learn — were the product of depression or any similar emotional condition").

The hearing record indicates that notwithstanding the student's diagnoses of Asperger’s

Syndrome, ADHD and Sensory Integration Disor Her, the District properly concluded that the student's social/emotional issues did not have an adverse impact on his educational performance (Exs. SD-7, SD-8). In making its determination t hat the student was not eligible for special education and related services, the District conve! hed a CSE in August 2016, which reviewed and considered the following: oral reports of the stud¢ mnt’s general education teacher, guidance counselor, parent, and attorney; a June 29, 2016 y sychoeducational evaluation; and a July 25, 2016 speech/language evaluation (Ex. SD-8). On the June 2016 psychoeducational evaluation, the student demonstrated average cognitive and a pademic functioning. Ratings regarding the student’s social/emotional, executive, and adaptiy re functioning varied, but it appeared greater concerns were observed in the home setting, rath¢ rr than the academic setting (Ex. SD-14 at 12).”

On the July 2016 speech/language evaluation, the student’s supralinguistic skills measured in the average range. While the student’s phonological processing skills measured in the below average range, they did not overly impact his ability to reqd (Ex. SD-13 at 3). Based on the evaluation results, teacher input, and academic performance, it was reasonable for the August 2016 CSE to conclude that the student was able to access, participate and achieve in his academic setting without special education accommodations and/o r services (Ex. SD-7).'°

During the student’s academic career at the high school, he received honors and highhonors level grades, was captain of the high school golf team, had excellent attendance, and by his own testimony, had five (5) very close friends and about thirty (30) individuals he socialized with This finding was consistent with the results of a BASC conducted in August 2006 by the Hyde Park School District (Exs. P-A at 2, SD-16 at 5).

'SThe matter was referred back to the Section 504 Committee which supplemented the student’s Accommodations Plan to include related services ofindivi Hual counseling, one time per month for thirty (30) minutes per session, and individual speech/language therap y, two (2) times per month for thirty (30) minutes per session (Exs. SD-6 at 2, SD-21 at 4). regularly at school (R. 448, 465, 467-469, 483; Ex. SD-1). The student was offered several scholarships for his academic abilities (R. 232, 44 4). The student graduated from the District’s high schoo! with a Regents Diploma on or about June 24, 2017 (Ex. SD-23). The student currently — s a freshman (R. 233; Ex. SD-3).

Based on the foregoing, the hearing recor supports a conclusion that the student should not have been classified as a student with a disabi ity under the IDEA because the evidence does not reflect that the student's conditions or deficits adversely affected his educational performance.

See C.B., 2009 WL 928093, at *2; N.C., 2008 WI L 4874535, at *2; Maus, 688 F. Supp. 2d at 294, 298; A.J., 679 F. Supp. 2d at 308-11; see also R.B .» 496 F.3d at 946, F, Bullying

The parent asserts that the student was bullied continuously throughout his high school years which deprived him of a FAPE (Exs. IHO-I IHO-V, IHO-VI at 2, THO-XX). A review of the hearing record reveals that the District was no t made aware of the all of the incidents of alleged bullying asserted by the parent and that it responded appropriately to those of which it was made aware.'°

Under certain circumstances, if a student v vith a disability is the target of bullying, such bullying may form the basis for a finding that a district denied the student a FAPE. See Dear Colleague Letter: Bullying of Students with Disabilities, 61 IDELR 263 (OSERS 2013) (stating that bullying that results in a student with a disabill ity not receiving meaningful educational

‘New York State has addressed bullying in schoa ls through DASA, which imposes specific obligations on school districts with regard to the prevention and investigation of harassment and bullying. See N.Y. Educ. Law §§ 10-18. The law defines bullying as "the creation of a hosti e environment by conduct or by threats, intimidation or abuse" that, among other things, interferes with a student's educational performance, mental, emotional, or physical well-being, causes a student to fear for his or her physical safety, or causes physical or emotional harm. See N.Y. Educ. Law § 11(7). benefit constitutes a denial of a FAPE and that districts have an obligation to ensure that students who are targeted by bullying behavior continue ta receive a FAPE pursuant to their IEPs); see also Smith v. Guilford Bd. of Educ., 226 Fed. App'x 58, 63-64 (2d Cir. June 14, 2007) (indicating that bullying might, under some circumstances, implicate IDEA considerations); ML. v. Fed.

Way. Sch. Dist., 394 F.3d 634, 650-51 (9th Cir. 2005) (finding that "[i]f a teacher is deliberately indifferent to teasing of a disabled child and the abuse is so severe that the child can derive no benefit from the services that he or she is offered by the school district, the child has been denied a FAPE"); Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199-201 (3d Cir. 2004) (reviewing whether the district offered the studen t "an education that was sufficiently free from the threat of harassment to constitute a FAPE"); ear Colleague Letter: Responding to Bullying of Students with Disabilities, 64 IDELR 115 (OCR 2014); Dear Colleague Letter: Harassment and Bullying, 55 IDELR 174 (OCR 2010) (stating that "a school is responsible for addressing harassment incidents about which it knows or rea sonably should have known"); Dear Colleague Letter: Prohibited Disability Harassment, 111 LE 'P 45106 (OCR/OSERS 2000).!” In determining whether allegations related to bullying rise to the level of a denial of FAPE, the United States Department of Education has clarified that:

'7 At least one district court in New York has found that "students have a right to be secure in school" under the IDEA and that bullying may constitute the denial of a HAPE if “it is likely to affect the opportunity of the student for an appropriate education." 7.K. v. New York City Dep' t of Educ., 779 F. Supp. 2d 289, 308, 316-17 (E.D.N.Y. 2011). The Second Circuit stated the test the district court developed to determine whether bullying resulted in the denial of a FAPE as follows: "(1) was the student a victim pf bullying; (2) did the school have notice of substantial bullying of the student; (3) was the school ‘deliberately ind ifferent’ to the bullying, or did it fail to take reasonable steps to prevent the bullying; and (4) did the bullying 'subs fantially restrict’ the student's ‘educational opportunities'?" T.K. v. New York City Department of Education, 810 F.3d 869, 874 (2d Cir. 2016), citing T.K., 779 F. Supp. 3d at 316, 318; see T.K. v. New York City Dep't of Educ., 32 F. Supp. 3d 405, 417-18 (E.D.N.Y. 2014). The Second Circuit did not decide whether an anti-bullying program must be included in a student's IEP, nor did it adopt the district court's four-part test. See 7.K., 810 F.3d at 876-77 &n.3.

A school should, as part of its appropriat, p response to the bullying, convene the IEP Team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that th e IEP is no longer designed to provide meaningful educational benefit. If the IE] P is no longer designed to provide a meaningful educational benefit to the stu Ment, the IEP Team must then determine to what extent additional or different spet bial education or related services are needed to address the student's individua needs; and revise the IEP accordingly.

See Dear Colleague Letter, 61 IDELR 263.

No reports of bullying of the student wer p made by the parent until the initiation of this hearing in January 2017, at which time the parent submitted complaints of past bullying in concert with this action, all of which were detern nined to be unfounded (R. 472; Exs. P-G, P-H, SD-17, THO-I, IHO-VI at 4-5). The record reflec ts that the student was involved in a physical altercation with fi another student at school, j n February 2015 (during his tenth grade), for which he received a short-term suspension (R. 1 )6, 347, 417-418; Exs. P-G, P-H, SD-17). The student claimed thai had made derogatory r pmarks about his parents online il said that the student who is the subject of this hearing ma He racial slurs against him online. Neither of those conflicting reports could not be substantiat ed. A video of the incident showed the student approachiill and strike him without any eviden ce of provocation. There were no further disciplinary incidents for the student since that d ate and no other complaints of peers other than an off-campus, on-line exchange in the 2016/17 school year (during his senior year) when the student had to be spoken to about making inappr opriate comments to other students online (Exs.

P-G, P-H, SD-17, IHO-VI at 4-5).

Alternatively, while the parent asserts tha t, as far back as a July 2010 psychological evaluation conducted by the Po (when the student was eleven (11) years old), the student was identified as being “a t risk for being teased, bullied or taken advantage of in school and social situations” (Ex . P-A at 10), that opinion was premised on the student’s “social immaturity and naivete,” not hi s diagnoses of Asperger’s Syndrome, ADHD and Sensory Integration Disorder (Ex. P-A at 10).

The record demonstrates that the student made progress during the 2014/15, 2015/16 and 2016/17 school years as discussed above and inc idents of alleged bullying did not interfere with the student's ability to receive educational benefit from his program, substantially restrict the student's learning opportunities, or prevent him

=om making progress (Exs. SD-1, SD-14 at 2-3, SD-19, SD-23). Accordingly, the student was not denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years as a result for the alleged instances of bullying. See N.M. v. Cent. Bucks

Sch, Dist., 992 F. Supp. 2d 452, 470-72 (E.D. Pa . 2014) (holding that where a district responded to all allegations of bullying brought to its attenti on, the district did not deny the student a FAPE despite not convening a CSE to address the bully ring by modifying the student's IEP, where the IEP provided emotional supports).

I have considered the parent’s remains cli aims (Exs. IHO-I, IHO-V, IHO-VI at 2-3) and have concluded that they are without merit.

V. ORDER

NOW, THEREFORE, IN LIGHT OF | lfHE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

For the reasons set forth above, the p parent’s claim that the District denied the student a free appropriate public education is hereby DEN IED.

Dated: November 21, 2017

PLEASE TAKE NOTICE

Within 40 days of the date of this decis ion, 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 Sec ‘ion 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plan to appeal the decison, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for revie w shall be personally served upon the opposing party within 40 days from the date f the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy o the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENT

A. Psychological Evaluation, Center for Spectrum Services, 7/2010, 11 pgs.

B. Letter to Principal from J, Wirth, Jr., Esqd., 12/29/16, 2 pgs.

C. Letter to Principal from J. Wirth, Jr., Esq., 1/26/17, 3 pgs.

D. Section 504 Committee Recommendation for Continuation of Services, 5/23/14, 1 pg.

E. Section 504 Committee Recommendation for Continuation of Services, 9/25/16, 1 pg.

F, Letter from Barry M. Uslianer, Psy.D., 12/3/16, 1 pg.

G. DASA Complaint filed by M.L., 12/29/16, 7 pgs.

H. DASA Complaint filed by M.L., 2/8/17, B pgs. I, Curriculum Vitae - Fred Volkmar, M.D.J 6/17/17, 121 pgs. (double sided)

J. Curriculum Vitae - Carol Fleres, Ph.D., ndated, 12 pgs. (double sided) K, Letter from Gary Mesibov, Ph.D., 8/14/116, 3 pgs.

L. Letter from Gary Mesibov, Ph.D., 10/5/16, 4 pgs.

M. Curriculum Vitae - Gary Mesibov, Ph.D], undated, 40 pgs. (double sided)

N. Essay - High School is War, 11/30/15, 2 pgs. (double sided)

O. Essay - Nighttime at St. Christopher’s Gym, 2/3/17, 2 pgs. (double sided) P, Positive Student Profile, undated, 3 pgs.

SCHOOL DISTRICT

1, Student Transcript, 2/27/17, 1 pg.

2. Senior Graduation Review Sheet, 11/22/16, 1 pg.

3. Active College Applications, 2/23/17, 1 pg.

4, Section 504 Accommodation Plan (2014/15), 5/16/14, 2 pgs.

5. Section 504 Accommodation Plan (2015/16), 5/11/15, 2 pgs.

6. Section 504 Accommodation Plan (2016/17), 9/13/16, 2 pgs.

7. Prior Written Notice - Finding of Ineligibility, 9/6/16, 2 pgs.

8. Committee Meeting Information, 8/31/16, 3 pgs.

9, Letter to J. DeCaro from M.L., 4/18/16, | pg. 10, Signed Consent for Initial Evaluation, 5/13/16, 1 pg.

11. Letter to J. DeCaro from M.L., 6/23/16, | pg.

12. Initial IEP Timeline Extension Agreement, 6/29/16, 1 pg.

13. Speech/Language Evaluation, 7/2016, 4 pgs.

14, Psychoeducational Evaluation (Red Hook), 6/29/16, 13 pgs.

15, CSE Medical Review Form, 5/18/16, 2 pgs.

16. Psychoeducational Assessment (Hyde Park), 8/17/06, 9 pgs.

17. DASA Investigation Report & Determination, 1/2017 - 3/2017, 19 pgs.

18. | NYSED Procedural Safeguards Notice (IDEA), 4/2014, 46 pgs.

19, Report Card - Marking Period 3, 4/7/17, | pg.

20. Section 504 Committee Consent for Accommodation, 6/19/11, 1 pg.

21. Section 504 Committee Notices, various|dates, 4 pgs.

22. Red Hook Procedural Safeguards Notice (Section 504), undated, 3 pgs.

23. High School Regents Diploma - A.L., 6/ 24/17, | pg.

IMPARTIAL HEARING OFFICER

I, Due Process Complaint Notice/Impartial Hearing Request, 12/29/16, 3 pgs.

H, Response to Impartial Hearing Request, 1/17/17, 6 pgs.

Il. District’s Motion on Sufficiency of Due Process Complaint, 1/18/17, 6 pgs.

IV. Interim Order on Sufficiency, 1/20/17, 5

V. Amended & Supplemental Complaint, 2 8/17, 17 pgs.

VI. Response to Amended & Supplemental Complaint, 2/22/17, 9 pgs.

VII. Confirmation of Extension, 3/29/17, 1 p

VII. Hearing Notice, 5/18/17, 1 pg. MN

IX. Hearing Notice, 7/3/17, 1 pg.

X. Hearing Notice, 7/14/17, 1 pg.

XI. Confirmation of Extension, 7/19/17, 1 p

XII. T—G

Email to IHO from J. Wirth, Jr., Esq., 8/ 1/17, 1 pg.

XII. Confirmation of Extension, 5/23/17, 1 p

UNot

XIV. Confirmation of Extension, 6/13/17, 1 p

XV. Confirmation of Extension, 8/31/17, 1 p)

XVI. Confirmation of Extension, 9/25/17, 1 p

XVII. Confirmation of Extension, 10/10/17, 1 | bg. XVUlI. Confirmation of Extension, 11/10/17, 1 pg.

XIX. School District’s Post-Hearing Brief, un Hated, 15 pgs. XX, Parent’s Closing Brief, 10/6/17, 40 pgs.