New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 173920

NYS Identifier Number N/A Student’s Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/14/18, 20/19/19, 03/07/19 &

04/04/19

Actual Record Close Date: 07/22/19

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 11/14/18 02/19/19 03/07/19 04/04/19 Attorney PARENT 11/14/18 02/19/19 03/07/19 04/04/19

Mother PARENT 11/14/19 02/19/19 03/07/19 04/04/19 Psychiatrist PARENT 04/04/19 Primary Clinician PARENT 04/04/19

On August 10, 2018, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute between the Parent of a (20) year old student attending a private school outside of New York State and the New York City Department of Education (“DOE”) - regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted at the request and with the consent of the parties or for cause, the impartial hearing was held on November 14, 2018, February 19, 2019, March 7, 2019 and April 4, 2019. The parties were to submit written closing statements that were originally due on April 25, 2019. (T-337-40) After asking for a reviving an extension, the written closing statement s were received on May 15, 2019. (D-23 & P-

CC) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

After agreeing to schedule the start of the hearing during the school winter recess, the DOE’s request to adjourn the same was opposed by the Parent and denied because absent a compelling reason or a specific showing of a substantial hardship, a request for an extension/adjournments shall not be granted because of: (a) school vacations, (b) a lack of availability resulting from the parties’ and/or representatives’ scheduling conflicts; (c) and/or agreement of the parties. (See Regulations of the Commissioner of Education, Part 200 - Students with Disabilities, Section 200.5[i] & [j])

BACKGROUND

The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2016-2017 and 2017-2018 school years.

(P-A) At the impartial hearing, the Parent seeks the following relief: A finding that (I)

the NYC-DOE failed to provide the student a FAPE for the 2016-2017 and 2017-2018 school years, (Il) that the Parents, unilateral placement of the Student in the private school was appropriate; and (Ill) that equitable considerations support the Parents’ claim for an order awarding direct payment/reimbursement for all tuition costs incurred; the reimbursement for the costs associated with the independent evaluation and that the NYC-DOE pay the Parents’ attorneys’ fees and other costs associated with this proceeding.

THE DOE'S CASE

The DOE did not call any witnesses to testify on its behalf and submitted (19) documents in evidence. In sum, substance and relevant part, the documentary and testamentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT'S CASE

The Parent called (3) witnesses to testify on her behalf giving their direct testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. (P-AA, P-J & P-K) The Parent also submitted (29) documents in evidence. In sum, substance and relevant part, the documentary and testamentary evidence for and against Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2"¢ Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2" Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], affid, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim’ of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in [its] jurisdiction." (See 20 U.S.C. § 1414[d][2][A]; 34 C.F.R. § 300.323[a] and Cerra, 427 F.3d at 194 (". . . the District fulfilled its legal obligations by providing the IEP before the first day of school."). Federal regulations specifically direct that a school district must have an IEP in place at the beginning of the school year. (See 34 C.F.R. § 300.323[a]) The DOE defends the student’s January 13, 2016 as appropriate for his 2016-2017 school year.

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the IHO (See 8 NYCRR 200.5[j][5][v])

The DOE argues that the student was properly not classified as a student with a disability and thus, is not entitled to tuition reimbursement for the (“ ”) for the 2016-2017 and 2017-2018 school years. (D-23) The agency states that the student’s May 3, 2017 IEP for the 2017-2018 school year determined that the student was not eligible for special education services. (Id., D-5 & D-14) In support of its argument, the DOE states that the May 2107 IEP was based upon the following evaluations and assessments of the student: A Social History (D-11), a Psychoeducational Evaluation (D-8), a Private Neuropsychological Evaluation (D-9), a Vocational Assessment of the Parent and student (D-6 & D-7) and a Teacher Report (D15) All of the documents were prepared during 2016 or 2017. (ld.)

The DOE further argues that despite any issues regarding “anxiety” the student is at an appropriate level academically for his age and is on or above grade level according to his private school. (D-23, citing D-12) Specifically, the DOE states:

“...with regard to the students performance on the ACT College Readiness

Assessment, the student achieved a score of 35 out of a possible 36; on the most recent New York State ELA and Math examinations, the student achieved the highest score earning a 4 out of a possible 4 points; and the academic grades the student earned at were all “A’s,” with the exception of a “B+” the student earned in Physics.” (D-23) Thus, according to the DOE, none of the student’s purported mental health diagnosis adversely affected the student’s academic performance and the CSE’s determination that the student did not warrant being classified as a student with a disability was appropriate. (Id.) (D-23, citing D-9)

However, the DOE notes that the evaluators also noted that the student made the following statements, that do not comport with the student’s alleged “symptoms”: “I feel confident when. "I outperform my peers." "Outperforming my peers makes me proud." “Most of all | want to be exceptional." “Looking ahead, | see myself. "being reasonably successful." “People like me when I make fun of other people." “If | could be someone else | would be someone more intelligent." “The ideal family is successful and considerate." “A job | would like is renowned author." (Id.) The DOE notes that the Parent actually removed the student's counseling services, because he refused to attend his counseling sessions. (D-23, citing T-103-4 & D-20)

Finally, the DOE questions the candor of the student's private school clinician that the student should be classified as having an “emotional disability” because of his exceptional academic performance at the private school and his enrollment in honors courses, advanced placement course and the student's election to complete an independent student project, as reflected in his report cards. (D-23, citing P-S & P-X)

In order to be classified as a child with a disability under federal or state law, a student must have a specific physical, mental or emotional condition to the extent that the student requires special services and programs. (See 20 U.S.C. § 1401[3] [defining a child with a disability as one who, by reason of their disability, “needs special education and related services”; 34 C.F.R. § 300.8[a][1], Educ. Law § 4401[1]; 8 NYCRR 200.1[zz] [defining a student with a disability as one who “requires special services and programs’|] & SRO No. 05-047) However, it is also true that in order to be classified as a child with a disability, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon the student's educational performance to the extent that he or she requires special services and programs. (SRO No. 00-009) Specifically, Education Law §4401 (1) defines a student with a disability as “a person...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....”. un

“Special services or programs” are defined to include home instruction. (Educ. Law §4401[2][a])

Here, the DOE argues that the fact that the student has excelled academically indicates that even if he has a “disability” under law, it has not adversely affected his educational performance to where he requires special services and programs.

The Parent concurs with the DOE regarding the student's diagnosis and his symptoms. (P-CC, citing D-9) The Parent notes that the student's January 2017 psychiatric evaluation found that the student’s academic performance was declining at his previous private school despite significant therapeutic support consisting of individual and family therapy, and ongoing medication management. (P-CC, citing P-H)

It was found that the student could not find the motivation to go to school or to hand in his homework and grew more depressed, whereby he stayed home sleeping all day, was up all night, watching TV and lashing out verbally at his family. (ld.) “Due to significant absences and worsening mental health, his parents took him out of and sent him to an intense therapeutic at . There, he finally began to make improvements, and they recommended he matriculate at the in , where he has been successful and has remained in school for ever since.” (P-H) The Parent argues that since his arrival at the , the student has experienced a major turnaround as a student, where he takes no psychotropic medications and has been thriving academically. (PCC, citing P-H)

The DOE asserts that the private evaluator’s recommendation that the student required a therapeutic residential school is not credible because she had only met with the student twice, for two 45-minute sessions, in January 2017 and in November 2017.

(D-23, citing T-299)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can_interpret_the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, wnose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having Knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

The student’s CSE meeting on May 3, 2017 was attended by related service provider and/or special education teacher, a general education teacher, the Parent, a district representative, a school psychologist and the student’s private school counselor.

(D-2) It does not appear that a “parent member” attended the meeting. 8 NYCRR §

200.3(a)(1)(viil) states in relevant part:

200.3 Committee on special education and committee on preschool special education.

(a) | Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to: (viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)

The procedural failure above does not rise to the level of a denial of FAPE. While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim _v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression” and if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).

Here, the Parent has prior experience and knowledge of the procedural safeguards available to her regarding special education services for her son, as evidenced by her testimony. The student’s mother testified that the student was classified as a child with a disability from First to Eighth grade and was declassified at the end of eighth grade with parental consent as he became sensitive to a perceived stigma of having special education services and refused to avail himself to those services. (P-AA) In sum, substance and relevant part, the student’s mother also testified as follows:

17. On June 15, 2016, | initiated a referral to the Committee on Special Education in order to have [STUDENT NAME] reclassified and to request a referral to New York State Approved therapeutic residential programs.

18. On July 20, 2016 | attended a Social History Evaluation with the DOE; at this meeting we provided the social worker with [STUDENT NAME]'s

Neuropsychological Evaluation.

19. On August 23, 2016 we advised the CSE, in sum and substance, "| wrote in June requesting classification and an IEP for the upcoming school year ... I am eager to hear from you regarding next steps, but to date no additional meeting has been held. As a result, [STUDENT NAME] will remain at where he already started the school year. | continue to consent with the process and look forward to meeting with the CSE. However, until and unless an appropriate IEP and placement recommendation are made, I will keep [STUDENT NAME] at and seek reimbursement for his tuition."

22. On May 3, 2017 | met with the Committee on Special Education. [STUDENT NAME]'s primary therapist from participated in the meeting by phone. Both myself and Ms. spoke in depth about the senselessness of separating [STUDENT NAME]'s academic abilities from his socio-emotional struggles, but they clearly had already decided that, because his academics are strong, he no longer needs anything from the DOE. Ms. , stressed that the only reason why [STUDENT NAME] was doing well was because of the supports that are available to [STUDENT NAME] at . Notably, the CSE even suggested at the meeting, that [STUDENT NAME] needed a place like . However, they inexplicably still failed to classify him as a child in need of special education services. It appeared that the CSE ignored the findings of the evaluation and substituted their own opinion. There was no consideration of discussion by the CSE regarding the input Provided by Dr. , Dr. , or Dr.

23. During the May 2017 meeting I made it clear that [STUDENT NAME] required the level of therapeutic support he received during his enrollment at . Specifically, his need for a therapeutic residential setting.

24. Additionally, the Student's therapist, at , participated in the May 2017 meeting. She summarized that there are gaps in the student's learning and that his executive functioning needs help across the board as it relates to all of his classes. However, the CSE did not seem to take that into consideration as they were very focused on the student's grades he was receiving and level he was functioning at regardless of the supports in place. Moreover, the CSE failed to account for the emotional supports that were in place in order to keep the student regulated so that he would be available to learn.

25. Through our attorney we advised the CSE, in August 2017, that "An IEP meeting was held for my son [STUDENT NAME] on May 3, 2017; and | recently received the ineligible for special services letter, Present Levels of Performance and Individual Needs and prior written notice report. I have serious concerns with the process as it was clear that the team had already decided that, inexplicably, they were not going to classify [STUDENT NAME] ... .It should also be noted that this meeting was held well after school started and almost a year after | first requested classification and an IEP. The CSE's failure to comply with its own timelines have prevented [STUDENT NAME] from receiving an appropriate education .... Both myself and [STUDENT NAME]'s therapist at , spoke in depth about the senselessness of separating [STUDENT NAME]'s academic abilities from his socio-emotional struggles, but they clearly had already decided that, because his academics are strong, he no longer needs anything from the DOE. Ms. , stressed that the only reason why [STUDENT NAME] was doing well was because of the work being done at ; and it was even suggested at the meeting, by the CSE, that [STUDENT NAME] needed a place like . However, they inexplicably still failed to classify him as a child in need of special education services... [STUDENT NAME] has had a long and complicated educational history, which was documented in the Clinical Neuropsychological and Psychological Evaluation ... It appears that the CSE ignored the findings of this evaluation and substituted their own opinion ... iii”, M.D. has performed a psychiatric evaluation of [STUDENT NAME] and confirmed the above diagnoses and found it critical that [STUDENT NAME] remain at a school that can provide a combination of academic rigor, therapeutic support and high expectations of its students to be hands on community members for the remainder of high school ... | would like to request an immediate IEP meeting based upon information that was not considered at the last meeting. | continue to consent with the process and look forward to another more meaningful meeting with the CSE. | look forward to hearing from you.”

2/.\|n January 2018, through our attorney we advised "I have not received any response to my previous requests. As a result, and as | previously notified you, [STUDENT NAME] started the school year at , which is appropriately meeting his special education needs. | continue to consent with the process and look forward to meeting with the CSE. However, until and unless an appropriate IEP and placement recommendation are made, I will keep [STUDENT NAME] at and seek reimbursement for his tuition.” To date the CSE has failed to reconvene.

28. To date, there has been no further contact from the DOE. (P-AA)

The IDEA sets forth procedural safeguards that include providing parents an opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child." (See 20 U.S.C. § 1415[b][1]) Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. (See 34 CFR 300.322; 8 NYCRR 200.5[d]) Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation.

(See P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008)("A professional disagreement is not an IDEA violation."), Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006)("Meaningful participation does not require deferral to parent choice."), Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir.

Dec. 6, 2006]) The testimony above indicated that the Parent did have an opportunity to fully participate at the hearing, despite the absence of a “parent member.” The record also indicates that the May 3, 2017 CSE team was duly constituted under law.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4{[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

Under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

The May 3, 2017 CSE team reviewed and noted the following test scores for the student:

The scores indicate that the student was functioning at an high average, above average or average cognitive and academic level. The CSE team also reviewed the student’s private Neuropsychological Evaluation dated August 8, 2016, noting that:

In a one to one standardized testing setting, [STUDENT NAME] presented as a very insightful and creative individual based on his oral responses.

He indicated on a vocational assessment that he likes English, philosophy and computer science. For his future career goal, [STUDENT NAME] would like to pursue a field in technology, entrepreneur or law. He aspires to go to college and then to graduate school. According to neuropsychological findings, [STUDENT NAME] presents with above average academic achievement.

The parent related no academic deficits/concerns. He displays weaknesses in his executive functioning and organizational skills. He has figured out how to be successful in a very small, structured environment with nurturing teachers. His mother reported that she is seeking a residential therapeutic treatment program that can address [STUDENT NAME]'s social emotional needs.

When applying to high schools, [STUDENT NAME] was accepted to schools for exceptionally high achieving students in NY, but his parent shared he did not want to go. [STUDENT NAME] reportedly chose to go to the boarding school in instead. While attending the boarding school in [STUDENT NAME] wasn't going to classes, he wasn't sleeping or eating and as a result failed his classes.

To maximize his potential within a general class setting, [STUDENT NAME] can benefit from directions repeated or rephrased, graphic organizers for written assignments, brainstorming activities prior to beginning an assignment, individualized assistance when working on extended writing projects, small group instruction, structured movement breaks, and external rewards to motivate his academic task completion, such as in writing. (D-1)

In developing the recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. (See SRO No. 14-101, citing 34 CFR 300.324[a] & 8 NYCRR 200.4[d][2])

The Parent asserts that the CSE did not take her concerns and recommendation into consideration. (P-A & P-CC) However, this belied by the document itself which indicates that the student’s evaluation was considered, along with the Parent's concerns. The May 3, 2017 document notes that:

Parent expressed significant concerns about [STUDENT NAME]'s inability to attend to school related activities without 24-hour therapeutic supports.

He has a counselor in NYC. [STUDENT NAME] has a history of rejecting mental health support services that have been available to support him during previous academic settings. However, he rejected social emotional supports offered to him when he attended public school and in the boarding school. In 7 grade he requested to have his classification removed. He did not go to see a therapist nor the psychiatrist that was available to him on site while attending boarding school.

The parent was clear that [STUDENT NAME] requires the level of support that he has at . (D-1)

The CSE found that the student was never hospitalized for psychiatric illnesses and that the psychiatrist that he was seeing in NY never recommended residential treatment. (Id.) The second psychiatrist recommended residential treatment after one

Intake and was recommended by the therapist at the for his mental health illness. (Id.) The CSE further found that the student is exhibiting mental health issues at the present time that do not interfere with his ability to learn and benefit from instruction and made the following recommendation: To maximize his learning potential, [STUDENT NAME] can benefit from directions repeated or rephrased, graphic organizers for written assignments, brainstorming activities prior to beginning an assignment, individualized assistance when working on extended writing projects, small group instruction, structured movement breaks, and external rewards to motivate his academic task completion, such as in writing.

Given [STUDENT NAME]'s average to above average cognitive and academic potential, [STUDENT NAME] will benefit from full access to the general education curriculum. (D-1)

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here, the Parent did not controvert the documentary evidence submitted by the DOE. (Supra) The credibility of the documentary evidence was not rebutted and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the DOE in this case to be credible and overwhelmingly uncontroverted.

Accepting that the student in this case does indeed have an emotional and mental disability, | still agree with the DOE that it is not affecting his education. Indeed, on June 8, 2018, the student received an Academic Diploma from the private school.

(P-M) The Parent argues that this is due to the necessary supports and services that the student received at the private school during the 2017-2018 school year. (Supra)

However, it does not follow that because the student did well at the private school, the school was absolutely necessary and the only vehicle for him to reasonably make progress appropriate in light of his circumstances. (See Endrew F. v. Douglas County och. Dist. RE-1, 580 U.S., 137 S. Ct. 988, 998-1001 [2017])

The DOE made no showing regarding the student’s 2016-2017 school year.

However, it is not disputed that the student was not certified for special education services for that school year. (D-19 - Decertification Documents dated 04/16/12)

The Parent asserted that the DOE violated the “Child Find” provisions of the law, when, based upon the student's emotional struggles the Parent initiated a referral to the DOE. (P-A & P-CC) The first undated letter from the Parent was received in evidence, stamped as having been sent by facsimile on June 27, 2016. (D-17) The letter reads as follows:

It is evident that our son requires a therapeutic school. He is currently at , but we have recently discovered that there are state-funded residential programs and would like to investigate these as a preferred alternative. Copies of any testing reports can be provided upon request. Accordingly, we wish to request classification and an IEP for the upcoming school year. Should additional testing be required, we are happy to accommodate all requests. Please contact us at your earliest convenience via the information above so that we can arrange a meeting.

We look forward to working together. (D-17)

An second undated letter from the Parent was received in evidence, stamped as having been sent by facsimile on August 25, 2016. (D-18) The letter reads as follows:

I am writing to follow up on my son [STUDENT NAME]’s case with the CSE. | wrote in June requesting classification and an IEP for the upcoming school year. In August, | attended | attended a Social History evaluation with . lam eager to hear from you regarding next steps, but to date, no additional meeting has been held. As a result, [STUDENT NAME] will remain at where he already started the school year. | continue to consent with the process and look forward to meeting with the CSE. However, until and unless an appropriate IEP and placement recommendation are made, I will keep [STUDENT NAME] at and seek reimbursement for his tuition.

| look forward to hearing from you. (D-18)

The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state. (20 U.S.C. § 1412[a][3], 34 C.F.R. § 300.111[al[1][i], 8 NYCRR 200.2[a][7] and New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]) The “child find” requirements apply to “children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade.” (34 C.F.R. § 300.111[c][1] & 8 NYCRR 200.2[a][7]) To satisfy the requirements, a Local Education Agency (“LEA”) must have procedures in place that will enable it to find such children. (SRO Nos.: 05-090, 04-054, 01-082 and 93-41)

Here, Parent's reliance on the “child find” provisions is misplaced because the purpose of the “child find” provisions of the IDEA are to identify, locate and evaluate those 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. (Handberry v. Thompson, 436 F.3d 52, 65 [2d Cir. 2006] [holding that the purpose behind the “child find” provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected)).

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 [2"¢ Cir. 2006], A.P. v. Woodstock Bd.

of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd, 2010 WL 1049297 [2° Cir.

March 23, 2010], see also 20 U.S.C. § 1412[a][S][A], 34 C.F.R. § 300.111 and 8 NYCRR 200.2[a][7])) The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services.” (20 U.S.C. § 1412{al[3], 34 C.F.R. § 300.111[a][1][i], Forest Grove, 129 S. Ct. at 2495, see 20 U.S.C. § 1412[a][10][Al][ii], see also 8 NYCRR 200.2[a][7] and New Paltz Cent.

och. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004])) The “child find” requirements apply to “children who are suspected of being a child with a disability . . and in need of special education, even though they are advancing from grade to grade.” (34 C.F.R. § 300.111[c][1], see 8 NYCRR 200.2[a][7])) As noted above, to satisfy the requirements, a board of education must have procedures in place that will enable it to find such children. (SRO Nos. 10-009, 09-132, 07-062, 05-090, 04-054, 01-082 & 93-41)

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. (SRO Nos.: 11-092, 11-094, 05-127, 05-040, 03-043 & 01-082) A district's child find duty is triggered when there is “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.” (See New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001] and SRO Nos.: 06-092, 06-087, 05-127, 05-040, 04-087, 04-037, 03-043, 02-092 & 01-082) To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing or have no rational justification for deciding not to evaluate. (See A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6 Cir. 2007])) States are encouraged to develop “effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education.” (See Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008], referencing 20 U.S.C. § 1400[c][5])) Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services 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 program. (8 NYCRR 200.4[a])

The Parent’s letter dated June 27, 2016, indicates that the student has already been evaluated. (Supra) It is clear that at the May 3, 2017 CSE meeting, the DOE did not overlook clear signs of disability and it was not negligent in failing to order testing because the student had already been evaluated. (See A.P. & L.M., Supra) What's more, a number of evaluations and assessments were in fact conducted just prior to, or shortly after the Parent’s request for a re-classification. (See D-5, 6, 7, 8, 9, 10, 11, 12, 13 & 15)

The student was not designated for special education service at the beginning of the 12-month, or 10-month 2016-2017 school year, as he had previously been decertified from receiving special education services (4) years prior, on April 16, 2012. (D-19) For the 2017-2018 12-month or 10-month school year, the CSE team met on May 3, 2017 and reviewed the available evaluative materials. Based on the record before me, the DOE’s decision not to re-evaluate or re-classify the student appears rational and justified by the information available to the team at the time of the meeting. As such, I find that the DOE did not deny the student a FAPE for the 2017-2018 school year.

Having found that the DOE did not deny the student a FAPE, the necessary inquiry is at an end and | need not determine the appropriateness of the student 2016-2017 and 2017-2018 private school placement. I will note for the record that there appears no reason to believe that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief as noted above is DENIED.

DATED: July 29, 2019

New York, New York Edgar De Leon - I.H.O.

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

02. Number/Letter Title Dated For #of Pages 01 Present Levels 05/03/17 DOE 04 Attendance Page 05/03/17 DOE 01 pages DOE

03. Letter to Parent 05/03/17 DOE 04 Withdrawn / Not Received N/A DOE N/A 02 pages DOE

05 PWN 05/23/17 DOE 03

06 Vocational Interview 07/20/16 DOE 02

07 Vocational Interview 07/20/16 DOE 04

08 Educational Evaluation 04/04/17 DOE 03

09 Neuropsychological Evaluation 08/08/16 DOE 21

10 Physical Examination 06/05/16 DOE 03

11 Withdrawn / Not Received N/A DOE N/A 12 Class Modulation 03/30/17 DOE 01

13 Report Cards 07/20/16 DOE 02

14 Notice of Meeting 04/19/17 DOE 03

15 Teacher Report 12/22/16 DOE 03

16 Consent for Evaluation 07/20/16 DOE 01

17 Evaluation Request 07/24/16 DOE 01

18 Letter to CSE 04/16/12 DOE 01

19 Declassification Documents 04/16/12 DOE 12

20 Parent Letter 01/01/11 DOE 01

21-22 Withdrawn / Not Received N/A DOE N/A 23 Closing Statement 05/15/19 DOE 12

DPC 06/25/18

OMZTEZVFrOFA-WSlCY7T

PARENT 05

DPC 11/04/16 PARENT 05

Due Process Response 11/17/16 PARENT 03

Parent Letter 08/17/17 PARENT 03

10-Day Notice 03/01/18 PARENT 04

Letter by undated PARENT (?)

Letter 06/09/16 PARENT 02

Psychoeducational Evaluation 12/17/17 PARENT 03 undated PARENT 03

Therapy undated PARENT 01

Handbook undated PARENT 32

Transcript 09/11/18 PARENT 02

Diploma 06/08/18 PARENT 01

Application undated PARENT 04

Agreement 06/20/16 PARENT 05