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Special Education Law
DECISIONParent PrevailedIHO Case No. 531528

Impartial Hearing Decision

December 7, 2020·Vanessa M. Gronbach·Hyde Park Csd

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

x In the Matter of the Impartial Hearing brought upon the request of [REDACTED]., Parent, for [REDACTED], a Student with a

Disability,

Petitioner, vs. Case #531528

[REDACTED] Central School District,

Respondent.

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

(hereinafter referred to as the “Student”)

Date of Birth: [REDACTED]

District: [REDACTED] Central School District

(hereinafter referred to as “District”)

Hearing Request by: [REDACTED]

(hereinafter referred to as “Parent”)

Hearing Dates: August 4, 2020

August 13, 2020

August 25, 2020

August 28, 2020

Record Close Date: November 20, 2020

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2020

For the Student:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent

For the District:

[REDACTED], Esq. Attorney for District

[REDACTED], Director of Special Education

[REDACTED], Special Education Coordinator

[REDACTED], School Counselor

[REDACTED], Special Education Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2020

For the Student:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent

For the District:

[REDACTED], Esq. Attorney for District

[REDACTED], Director of Special Education

[REDACTED], Special Education Teacher

[REDACTED], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 25, 2020

For the Student:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent

[REDACTED], Psychiatric Nurse Practitioner

For the District:

[REDACTED], Esq. Attorney for District

[REDACTED], Director of Special Education

[REDACTED], English Teacher

[REDACGED], Tutor

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 28, 2020

For the Student:

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent

For the District:

[REDACTED], Esq. Attorney for District

[REDACTED], Director of Special Education

INTRODUCTION

This matter comes before the undersigned Hearing Officer based on a due process complaint (“DPC”) by the Parent dated September 16, 2019, but received by the District on September 26, 2019, on behalf of her son (hereinafter referred to as the “Student”). In the DPC, the Parents asserted that the District had failed to provide a free appropriate public education (“FAPE”) during the 2018/19 and 2019/20 school years, when it failed to classify the Student for special education services under the Individuals with Disability Education Act (“IDEA”) (D-Ex. 26)[1]. The Parents requested that the Student be classified, be provided with special education services, and be placed in a State approved residential non-public school (D-Ex. 26).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on September 27, 2019. There were pre-hearing conferences held on November 20, 2019, December 13th and 23rd, 2019, and June 12, 2020, to discuss the issues in the case, complete the functional behavior assessment (“FBA”) requested by the Parent, receive status updates, and schedule hearing dates (See, Transcripts).[2] The hearing began on August 4, 2020, and lasted four days. The District presented seven witnesses and the Parent presented two witnesses. Both parties presented exhibits, which were admitted into the record. There were ten extensions of the timelines to allow for the FBA to be completed, the District’s Committee on Special Education (“CSE”) to convene, the Pandemic, availability of witnesses, submission of briefs, review of the extensive record, and drafting of the decision.

FINDINGS OF FACT

The Student was a [REDACTED] year old, 10th grade student during the 2019/20 school year (Ex. 26). The Student is diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Generalized Anxiety Disorder and Major Depressive Disorder (D-Ex. 16; Ex. 26). The Student was described as personable, engaging, articulate, relatable and able to communicate his difficulties and concerns (T. 48). He could also become annoyed by peers, especially with peers with behaviors or who were distractible (T. 48).

The Student had no history of behavior and no discipline history (T. 49).

The Parent testified that the Student began exhibiting his first signs of depression at the end of 5th grade when the Student did not want to go to his graduation because his father would not be there (T. 511-512). His father had passed away about three years earlier (T. 512). The Student did not want to be a part of the graduation festivities, but the Parent was able to get him there, he saw his friends and he seemed to be okay (T. 512).

During his 6th grade year (2015/16), the Student had a skiing accident and suffered a concussion (D-Ex. 1-1; T. 36). The Parent testified that the Student had attended school on a regular basis up until his skiing accident (T. 513). Prior to the accident, the Student had a routine, would get up brush his teeth, wash, eat, and run to bus (T. 513). After school, he liked to bike ride, woodwork, play video games, play soccer, went to bed around 11:00 p.m. and woke up around 7:00 a.m. (T. 513). The Parent testified that at that time, she typically did not have trouble getting him to school in the morning (T. 514).

After the concussion, the Student would complain about being in school, and that when reading, letters would come off the page, and when doing math he would use the wrong numbers (T. 517). The Parent also noticed that the Student could not get to sleep and would suffer from extreme headaches, which he took medication for and they eventually dissipated (T. 517). After the concussion, the District modified the Student’s scheduled because the Student could not get up in the morning (T. 517-518, 652-653). The bus would pick him up at 10:00 a.m. and he would get out of school at 2:00 p.m. (T. 517-518, 652-653). The modified scheduled continued through his 8th grade year (T. 518). The Parent testified that the modified school day seemed to work (T. 523).

In March 2017, the Parent took the Student for a neurological consultation because he was staying awake 21 hours at a time (T. 518). The doctor started the evaluation but on the follow up appointment the Student fell asleep in the waiting room and they could not get him up (T. 518). A report was generated that recommended, among other things, a referral to the CSE and a comprehensive evaluation (D-Ex. 1; 4).

The Parent had requested a 504 plan for the Student and one was developed on May 16, 2017 (D-Ex. 33, 36, 522; T. 654). The 504 noted that the Student had a diagnosis of Depression and ADHD, was on a modified schedule through the end of the year and was provided with a home instructor who would help with missed assignments (D-Ex. 33-1). It was reported that the Student was bright and that his grades were good but he was suffering from insomnia and would be participating in a sleep study (D-Ex. 33-1). The 504 recommended additional time to complete assignments, refocusing and redirection, special seating arrangements, and use of breaks (D-Ex. 33-2). Testing accommodations included extended time (1.5), flexible setting, preferential seating, refocus and redirection, and use of break periods (D-Ex. 33-2).

The Parent also referred the Student to the District’s Committee on Special Education (“CSE”) during the Spring of 2017, the Student’s 7th grade year (D-Ex. 2; T. 35-36, 654). The CSE met during on August 8, 2017, prior to the Student entering the 8th grade (T. 36). The doctor who conducted the sleep study mentioned at the 504 meeting was present at the IEP meeting (P-Ex. A; T. 627, 651-652, 668). The Parent was concerned about the Student’s post concussive symptoms, his not showing up for school, his sleep patterns, and his grades had declined (T. 519-520). The Parent was advised to apply for both and she did not feel that the Student was getting better (T. 36, 522, 654).

The CSE reviewed the Student’s cognitive, academic and social emotional functioning, as well as social history and medical documentation (P-Ex. A). The Student’s cognitive functioning was described as strong with significant strengths within the superior to very superior range, in most subtests except processing speed (D-Ex. 4). His social emotional functioning revealed heightened levels of depression and anxiety, which led to loss of interests, social difficulties, and withdrawal (D-Ex. 4). The psychological evaluation noted that his sleep difficulties and depression, which were identified as post-concussive symptoms, were impairing his daily function in all areas, including academics, social relationships and daily living skills (D-Ex. 4-8). The Student’s academic testing revealed average to high average functioning in all academic areas (D-Ex. 5; 6).

The Student was not found eligible because he didn’t meet criteria for eligibility for special education services (P-Ex. A; T.36-37). The District’s Special Education Coordinator (“SEC”) testified that the 504 had been developed just before and not much time had passed to allow the accommodations to be implemented (P-Ex. A; T. 37). The ineligibility document noted that the CSE had provided the Parent with information on how to request home instruction for the 2017/18 school year (P-Ex. A).

During the 2018/19 school year, the Student’s 9th grade year, the Student took all typical classes such as English, Global, Algebra, Science (all regents level courses), French 2 and Design and Drawing for Production, which was a college level course (T. 93-94). In the Fall of 2018, the Student’s attendance was spotty (D-Ex. 29; T. 95, 230, 289). It was reported that some absences were because of religious holidays (T. 230).

The School Psychologist (“SP”) testified that during the 2018/19 school year, the Student was on her roster and chaired his 504 meeting (T. 218, 223). On or about September 10, 2018, she reached out to the Parent to schedule the 504 meeting (D-Ex. 27-2; T. 225). In discussing the Student’s 504 plan, the Parent had shared that she did not feel the 504 plan was necessary anymore because he was no longer experiencing concussion symptoms, although the Parent was still concerned about his sleep (D-Ex. 27-2; T. 227-228). The Parent testified that the Student seemed to be doing well and she wanted him back in school full time (T. 524). On that same day, the Student had woken up and took the bus to school (T. 525). The SP was not comfortable removing the plan, and suggested to keep it in place and revisit the plan after the first quarter (T. 228). The Parent agreed to keep plan as is (T. 228, 525-526).

On or about September 14, 2018, the Parent reached out to the SP to inform her that the Student would not attend school and wanted the SP to speak with him (T. D-Ex. 27; T. 95, 225, 239-240). The SP did talk to him (T. 226). The SP testified that it was a bit awkward since they had not met, and it sounded like he was laying down when they spoke, but she asked him if he would go to school and meet with her, and he agreed (T. 226, 313). The Parent brought him to school and the SP met the Student and Parent in her office (T. 226, 313). The Student was quiet and the Parent shared her concerns and the struggle she had in getting him out of bed and with his hygiene (T. 70, 226, 314). The SP discussed the supports the school had available and discussed a plan for getting him through the school day and to support his attendance (T. 226-227). The SP testified that the Student would visit her in the office a few times in the Fall of 2018 and again when he returned from [REDACTED] in the Spring. It was about ten to fifteen times total throughout the year (T. 289-290). She also spoke to him a few times on the phone when the Parent would call her to say that she was having a hard time getting him to school (T. 290).

The School Counselor testified that at beginning of 2018/19 school year she did not have any contact with him but knew who he was based on her conversations with the middle school counselor, and knew he had been on home instruction and had a 504 plan for a concussion (T. 87-88). The Counselor testified that the Student had expressed a willingness to get to school but his attendance was poor and he was often late when he did go to school (T. 95). The Parent would dropped him (and his sibling) off at school, typically around 10:30 or 11:00 a.m. (T. 70).

At some point during the 2018/19 school year, the Parent testified that there came a day when the Student shut down (T. 527). The Parent described that the Student appeared to be in a comatose state, he did not react to her, or noise, and he just lay in bed with his eyes closed (T. 527). The Parent called mobile crisis, and they went to the house (T. 528). The Parent also took him to a 24-hour crisis center and it was suggested that he go to [REDACTED] (T. 528, 530).

In January 2019, a psychosocial evaluation was conducted at that Parent’s request because she was concerned about the Student’s lack of motivation and low interest in school, including refusing to attend (D-Ex. 7-1). The Student’s behavior in the session was described as cooperative and attentive, although he was easily distracted (D-Ex. 7-2). The Student was diagnosed with an Adjustment Disorder with Anxiety and an Adjustment Disorder with Mixed Anxiety and Depressed Mood (P-Ex. 7-2).

In January/February 2019, the Student participated in the [REDACTED] (“[REDACTED]”) program (T. 40, 99, 232). [REDACTED] is a mental health program for students, through health insurance, not controlled by the District (T. 40-41, 231). The Student attended [REDACTED] because of the Parent was concerned that the Student was not attending school and because of mental health concerns (T. 45). It was reported that the Student had reported that he was having anxiety and suffering from depression (T. 99, 105). The transition to [REDACTED] was difficult for the Student, he could not attend the classroom at first, but eventually was able to attend (T. 530-531). The Parent testified that the Student did not match well with the teacher and that may have contributed to not wanting to attend the classroom (T. 102, 531-532). The Parent was responsible to get him to [REDACTED] and he went at first but then his attendance declined, and he started going late (T. 40, 100, 236). His schedule at [REDACTED] was group counseling in the morning, and then schoolwork in afternoon (T. 100). Because he had a hard time getting there on time he was missing the group counseling (T. 101).

The School Counselor acted as a liaison between [REDACTED] and the school and provided the Student’s assignments to the program (T. 44, 100). The Student did not complete the schoolwork, and the school was not getting back much of the work provided, and his grades declined (T.40, 45, 236). The Student attended [REDACTED] for about 5 or 6 weeks (T. 101). It was reported that the Student did not do well in the [REDACTED] program (T. 45). At [REDACTED] the Student was designated as having a Serious Emotional Disturbance (D-Ex. 14-6).

A progress report from March 11, 2019, noted that although the Student was joking, talkative and social prior to group, he presented as subdued in group therapy and lashed out, and became argumentative and critical (D-Ex. 14-11). He was sullen, conveyed hostility and refused to participate in group counseling, but afterwards was social, talkative and laughing again with peers (D-Ex. 14-11).

A progress report from family therapy on April 24, 2019, noted that the Student was feeling angry due to issues pertaining to school stressors (D-Ex. 14-6). The Student stated that he wanted to feel less anxious and be involved in things and wanted to learn better coping skills (D-Ex. 14-7). The Student also commented that he was annoyed with school and felt that he was being forced to attend classes and not given the opportunity to use guidance when stressed or anxious (T. 14-8). It was noted that the Student was despondent while at [REDACTED] and refused to sit with group, he also admitted that he was not completing the work assigned (D-Ex. 14-8). He also admitted not taking his medication as prescribed (T. 14-8). It was noted that an IDT referral with the school was discussed (D-Ex. 14-8).

Around the Spring of 2019, the School Counselor spoke with mental health provider at [REDACTED] and the Student’s teacher who reported that the Student was doing better and wanted to go back to school so they started working on a plan to get him back in school (T. 102-103). Counselor and School Psychologist then met with the student and Parent to work out a plan for the Student to return for a partial school day that would start around 5th period, around 10:58 a.m., which were his favorite classes (D-Ex. 9; T. 105, 232-233). They wanted to create a plan to manage his workload and not overwhelm him (T. 232). The discussion also included returning to school two/three days per week and going to [REDACTED] the other days or partial days with school and [REDACTED] in the same day (D-Ex. 9; 34; T. 103, 108, 233-234). The plan was developed with [REDACTED] with the promise that he would get to [REDACTED] on time (D-Ex. 9; T. 236-237). The parent appeared to be in agreement with the plan but was concerned about his work completion (T. 108, 235, 292-293). The Student also seemed to be on board with the plan (T. 292). He did not express any strong statements about it either way (T. 292). However, the Student did not appear in school as discussed and he stopped engaging in the schoolwork portion of the day at [REDACTED] (D-Ex. 10; 27-1).

The Counselor attempted to set up a meeting with the Parent after the transition plan meeting, but the Parent was not returning her calls (T. 109, 111-112). When they met with the Parent and the Student it appeared that they had an agreement, but then the Student did not return to school (T. 110, 293). The Counselor, Assistant Principal, and the School Psychologist also made phone calls and left messages for the Parent but did not hear back from her (T. 141-142). The Parent did not want any contact from the school and had even asked that attendance letters stop being sent home (T. 139).

The Student did return to school after [REDACTED] in the 4th quarter (T. 51). The Counselor had an interaction with him when he returned, specifically she remembered a conversation with him where he was honest about what classes were important to him and those classes he did not care about, he was annoyed at his sister, and did not like the [REDACTED] program he had attended (T. 89-91, 114). The Student shared that he missed his friends, did not like the teacher, did not want to do group counseling and wanted to go back to school (T. 91). The Counselor described the Student’s relationship with his peers as great because when he was in school that is what he talked about, seeing friends and he did not want to let them down by not going to school (T. 92).

One time he got to school early, before 5th period, and he was watching something with one of teachers, he was happy to be there, and happy to be back (T. 114). She also talked to him about his science class and he commented that he liked science and wanted to stay after school for science (T. 114). The Counselor also communicated with his teachers about the work he missed and needed to make up (T. 115, 247-248). The Student had to catch up on work and was successful in catching up with the exception of PE class (T. 51-52). The Student passed all his classes and regents exams, except for PE (D-Ex. 20; T. 115). The Student was enrolled in Regents level classes, took Regents exams in June 2019 and passed them both (D-Ex. 20; T. 52, 94). For his Science Regents exam, the Student was required by NY State to complete a certain number of lab hours, which he did (T. 115). The Student attended a six-week summer school because he had failed physical education (D-Ex. 20; 29; T. 140-141).

Parent had reported that the Student had experienced distress but his teacher did not see any obvious stress (T. 253-254). His teacher talked to the Student about staying after to catch up on the labs and was surprised to hear about any distress (T. 253-254). A District witness testified that the Student did not receive supports in class, but the Parent testified that she did hire a tutor for about two months to work with the Student on the classwork he missed and help him prepare for his regents exams (T. 53-54, 538-539, 631-637, 657).

The School Psychologist chaired the Student’s 504 meeting on June 11, 2019 (D-Ex. 17; T. 254). The Parent had the same concerns, lack of school, not doing work, no motivation, lack of sleep, and when she tried to work with him he would get angry (D-Ex. 17; T. 540). He did not function at home either, he stayed in his room, would not brush his teeth or shower (T. 540-541). He would go two months without showering and four or five months without brushing his teeth (T. 541-542). Changes were made to the 504 plan including the addition of the safety pass (allowing him to access the guidance office for breaks or speak to support staff), copy of class notes, and altering the class presentation format due to his getting nervous before giving a presentation (D-Ex. 17; T. 255-256). Testing accommodations remained the same (D-Ex. 17).

The Parent again referred the Student to the CSE in a letter dated May 15, 2019 (D-Ex. 15; T. 40). The Parent was concerned that the 504 plan was not enough to address his academic, behavioral, social, and emotional needs (D-Ex. 15). The CSE met in August 2019 and reviewed updated evaluations, a social history, medical documentation, and a psychiatric evaluation provided by parent (T. 41-42). The CSE reviewed that the Student was diagnosed with ADHD and Depression (T. 42). The Parent had requested the meeting because she did not know what else to do as she was still concerned with his sleeping habits, not communicating, not showing up for school, and not doing homework (T. 545). She also shared that the Student was getting tutoring at home (T. 545).

The School Psychologist conducted the psychological evaluation in July 2019 (D-Ex. 23; T. 258-259). The SP described the Student during the testing as fidgety, twirled his hair, and had a low level of hyperactivity and anxiety (D-Ex. 23; T. 260). His general demeanor was open and communicative (T. 260). During the evaluation they took breaks, and discussed his concerns, talked about his program, and how he felt with the program. The Parent expressed concerns related to anxiety, depression, insomnia and inattention (D-Ex. 23-6). The SP had her door open and the Parent was on the other side of the door (T. 261-262). The Student kept looking at the door when she asked him about the dynamics at the home (T. 261-262). The Student shared that the Parent told him to tell her that he was experiencing maximum levels of anxiety at school even though he was not (T. 261-262). She did not include this detail in the report because she had a good relationship with the Student she did not want to hurt her relationship and trust (T. 261-262). The Student also shared that there was tension between the Parent and his sister (T. 261-263). The Student was very clear that he did not need anything additional or special (T. 264). He stated that he did not need and did not want to be a part of special education (T. 265, 267). The Student expressed minimal anxiety but it was summer school and he said things were going well in the program (T. 296).

The Student was administered the Woodcock Johnson Test of Cognitive Abilities- 4th edition, which was a standardized norm referenced assessment (D-Ex. 23; T. 268). The evaluation results indicated that the Student had average to superior cognitive functioning, with the exception of one area (D-Ex. 23; T. 271-272). The report indicated that the one area of need could be supported through the continued use of extended time (D-Ex. 23-6).

The Behavioral Assessment System for Children (“BASC”) was also administered, which assessed the Student’s social, emotional and behavioral needs from the perspective of the Student, the Parent and a teacher (D-Ex. 23; T. 272-273). The Student’s scores were flagged which indicated that the Student was experiencing a very high level of maladaptive behaviors (D-Ex. 23; T. 275). The BASC demonstrated clinically significant concerns in the areas of internalizing problems, loss of control, social stress, depression, sense of inadequacy, relationship with parents, interpersonal relationships, and self esteem; and at-risk concerns in the areas of anxiety, attention problems, and hyperactivity (D-Ex. 23-9; T. 300-301). The report noted, that the Student stated that he does not believe he required any additional education supports to progress academically (D-Ex. 23-6).

No classroom observation was conducted because it was summer (D-Ex. 23-3; T. 298-299). It was explained that classroom observations look at how a student interacts with peers and responds in the classroom (T. 298-299). The SP testified that it would be important to observe the Student in the classroom setting when the student is showing signs of not coming to school or attendance issues, but it was challenging because the Student’s ability to participate in class was limited due to his attendance issues (T. 298-299). The Student stopped attending summer classes after the evaluation was completed and failed PE/gym again (T. 296, 538).

The District’s Special Education Teacher testified regarding her testing of the Student in July 2019 (D-Ex. 24; T. 156, 164). She described the Student as relaxed and easy going (T. 167-168). In the evaluation report, the Special Education Teacher noted that the Student liked school, but did not remember the specifics of the conversation (D-Ex. 24-2; T. 199-200). The SE teacher explained that the education evaluation given, specifically the Woodcock Johnson Test of Achievement was a standardized norm referenced test, norm based on age (T. 202-203). The standard score determined where a student falls in reference to their peers in the same age level and an average score is between 90-110 (T. 204). The results of the test indicated that the Student was a very bright with scores in the average to high average range, indicating strong academic skills (D-Ex. 24; T. 207-208).

The Special Education Coordinator explained that the CSE team looked at the 13 classifications and whether the student required special education in order to access the curriculum to benefit from the instruction and whether special education would be the remedy for the disorder or concern (T. 46). The CSE discussed the Student’s ability to learn from the general education instruction and discussed that the Student was a very capable student with strong academic and cognitive skills and was able to access more sophisticated course work (T. 47). No one who participated in the CSE meeting reported that the Student’s mood was affecting him while in class or that he had limited vitality in class (T. 52-53). The Student did not express or exhibit any fear of the school setting either (T. 54-55). At the time of the meeting, the Student was taking medication, enrolled in therapy at [REDACTED], received home based crisis intervention, and [REDACTED] (D-Ex. 25-1).

The CSE did not believe that the Student needed special education services in order to participate in that coursework (T. 47-48). The Student was again found to be ineligible for services (D-Ex. 25; T. 42). The CSE discussed his depressive disorder and that the biggest barrier at the time was getting up and getting to school (T. 50). The SEC testified that when someone is depressed they tend to sleep and not be motivated (T. 50). At the time of the August 2019 CSE meeting, there was 504 plan in place (T. 47). The Parent testified that she was told that the Student was extremely bright and did not need an IEP (T. 546). The IEP was declined and the Parent did not agree because she knew what the Student was capable of and knew what he was like before and he was declining both at home and at school (T. 546).

Once the CSE determined that the Student was not eligible, they tried to think about strategies to address his bridge back to school (T. 67). They discussed the best way to support him, with a bridge to school, getting him into a routine and into the building, and providing accommodations as needed and access to the guidance office (T. 50).

At the CSE meeting the Parent had requested a psychiatric evaluation and placement at a residential treatment program at a specific placement (T. 56). The CSE denied the evaluation because the CSE had relied on the current psychiatric diagnosis and reports from providers (D-Ex. 25). The SEC thought residential was an extreme request because a residential placement would be considered for a student who was eligible for special education services, someone who had been receiving special education supports in a less restrictive environment, and could not be supported, despite the interventions, and continued to present with extreme difficulties (T. 56). The SEC explained the continuum of services, which laid out a least restrictive to most restrictive manner to provide special education services (T. 58). The continuum of services could start with resource room or related services, to a co-teaching program, to a special class where all students have disabilities like a 15:1 or 12:1, or more intensive needs in a specialized school like a day program, and then the most restrictive of residential or hospitalization (T. 58-60). Placement in day and residential programs required referrals and acceptances (T. 61-63). The SEC was familiar with the Parent’s requested residential placement and was concerned that there would be no access to typical peers and that it would be inappropriate to the Student because of where he was academically and socially (T. 64-66). The students in that residential program needed more interventions, struggled with behaviors, were self injurious, had significant discipline records, inappropriate behaviors in school, insubordination, and/or suicidal ideations (T. 64-66).

At the beginning of the 2019/20 school year (10th grade), the Student was in attendance but then stopped (T. 118-119, 276-277). The Parent testified that his first day of 10th grade, the Student seemed to do ok, he was at school all day and took the bus home (T. 551-552). The Parent had hoped that he would not need the 504 plan and believed that he went to school for the first three days (T. 551-552). His English teacher testified that the Student attended on the first day of school and then stopped attending (T. 357-358). Her class was a general education class that followed the general education curriculum and she was the only teacher (T. 361, 362). She described that the Student sat in the front of the class and was fidgety (T. 358). The Student turned and spoke with the person next to him and shared that he really wanted to attend school this year (T. 359). The English Teacher conducted an activity with the Student where she asked the entire class to tell about themselves, how they did the year before and what their goals were for the year (T. 359). The Student wrote down his goals for the school year and he indicated that his goal was to attend school every day (T. 119, 359).

However, on September 5, 2019, the Student texted the Parent to pick him up from school (P-Ex. K; T. 554). The Counselor testified that she spoke with the Student and he shared that he was feeling overwhelmed and had texted the Parent (T. 134-135, 278-279). The Parent had called the school to say that she was sending her sister to pick up the Student but the Student stated that he did not want to go home, he was just feeling overwhelmed because it was his first day back in school in a few months (T. 135-136, 280, 555-557). When the Counselor asked him again if he wanted to stay in school, the Parent, who appeared to be upset, told her not to ask him leading questions and sent her sister to pick him up anyway (T. 135, 280-281). The Parent felt that she was the Parent and makes the decisions and thought the right decision was to pick him up (T. 558). The Student considered going to school the next day and leaving the Parent a note so when she woke up she would not be worried (T. 145-146). The Student said he could take the bus to school and the school arranged it with the bus company (T. 146, 281-282, 304-305). He was set up for transportation and they explained the time the bus would pick him up and where (T. 150-151). Unfortunately, the Student did not go to school the next day (T. 282, 305). On September 30, 2019, the Parent sent an email to the District indicating that the Student would not be in attendance until further notice due to emotional issues (D-Ex. 28).

The Student did not return to school until the Parent received a call from the Assistant Principal, around Thanksgiving, informing her that they were setting up home instruction at school for the Student (T. 561). The Parent requested a bus and the AP stated he would look into it but did not call her back (T. 561-562). About two weeks later the Parent called the AP and transportation was set up (T. 69, 70, 561-562). The District decided to try tutoring in the school setting to get him out of the house and into the school environment for more of a routine, but with more individual support (T. 67-69, 122). The goal was to attach a preferred course on to the tutoring session to get him to attend a class and gradually increase his time in school (T. 68).

The Student’s Tutor testified that she provided him with instruction from December 16, 2019 until February 2020 at the high school (D-Ex. 37; T. 378-379, 568-569). It was the second marking period going into the third (T. 404, 407-408). Tutoring took place in the high school classroom every day for two hours each day (T. 74-75). The tutor would pick up the class assignments left in the guidance office and return them, as well as use Google docs (T. 360). The English teacher testified that she did not receive any communication from the Student or tutor that he had concerns with the classwork or issues completing assignments (T. 365-366).

The Tutor described the Student as polite, pleasant, bright, worked independently, did not need a lot of direct instruction, and asked for breaks but not frequently (T. 387-388). She observed that he tapped his foot and his knee would shake up and down at times, more so when a teacher would come into the classroom to check on him (T. 395). The work she provided him was from his teachers (T. 388). The Student worked independently and did not require much assistance from the tutor (T. 388-389). She delivered the work completed to the assigned teacher and they provided the feedback and the grades (T. 390). A few times the Student shared that he did not sleep very well, and if he seemed tired she offered him breaks (T. 391-392). The Student was able to complete the work provided during the 2 hours (T. 391-392). The only time he expressed feelings of being overwhelmed or overburdened was when he took the work home (T. 396). The Student commented that he could not complete the assignments at home because he could not focus (T. 396).

The student did attend each day fairly regularly until the parent had indicated that he would not be returning to school until further notice (T. 75). The Parent would send notes when he was absent, indicating he was out due to mental health issues, but medical documentation was ever attached (T. 121). On March 2, 2020, the Parent called the Guidance Office and informed the District that the Student may not return to school for a while (D-Ex. 37; T. 400, 570-571). The Parent testified that the Student was getting more anxious and withdrawn and spending more time in bed (T. 570).

The Parent signed consent for the District to complete a Functional Behavior Assessment (“FBA”) in November 2019 and it was completed in March 2020 (D-Ex. 36; P-Ex. F; T. 283). The School Psychologist explained that the FBA looks at areas of identified concern, based on feedback from the parent, teachers and providers (T. 282). The assessment finds out if there is a basis for the concerning behaviors, looks for patterns, the function of behavior, any antecedents or reinforcement gained from the behavior (T. 283). Then recommendations are made on how to support and eliminate the negative behavior (T. 283). The FBA noted that there were many contributing factors to the Student’s school avoidance including: noise, transition, annoying peers, mental health, poor sleep and not taking his medication consistently (D-Ex. 36-1). It was noted that the Student mentioned that he enjoyed tutoring because it allowed him to work at his own pace, where the classroom moved too fast or too slow; it also allowed him to take breaks as he had a hard time transitioning between classes and finding space to unwind (D-Ex. 36-2). He commented that the hallways were overwhelming (D-Ex. 36-3). In discussing getting to school in the morning, the Student shared that having depression made it impossible to get out of bed in the morning and if he forgot to take his medication at night it would be hard for him to sleep well (D-Ex. 36-2). The Student commented that he wanted to get back to school and missed his friends (D-Ex. 36-2). The report recommended, among other things, to continue tutoring and introduce preferred classes when he has met criteria to rejoin, and noted that as he moves closer to a full day schedule to consider appropriate supports and alternatives to help him access his education with less stress and frustration (D-Ex. 36-6).

The District attempted to schedule a meeting to review the FBA, but the Parent said she was not available on that day. The Parent corresponded with a District secretary who attempted to reschedule but the Parent replied that she was not available for any day (T. 286-287, 308). The 504 meeting was ultimately held in June 2020 but the Parent did not participate, she stated that she would not attend, even on a different date (P-ex. 39; T. 311-312, 318). At the meeting they reviewed the results of the FBA, reviewed the accommodations on the plan and made recommendations (T. 319-320). They would have discussed expanding the tutoring hours but the Student stopped attending school prior to the Pandemic (T. 320). No changes were made to the accommodations on the 504 plan (D-Ex. 39; T. 321). The Parent was sent a copy of the 504 plan (T. 322).

The Student’s Psychiatric Nurse Practitioner (“PNP”) testified that School Refusal or School Avoidance is a functional impairment (T. 419). Students with school refusal/avoidance generally do not go to school, or go late, or go and have panic attacks and leave, are truant, cannot get to school or cannot stay in school (T. 419). The PNP worked with the Student as a psychiatry provider at [REDACTED] (T. 420). [REDACTED] is a community agency that provides mental health service (T. 43). He became a patient at [REDACTED] on June 6, 2019 (P-Ex. H; T. 420). The Student had been seeing another provider who had moved and they went to [REDACTED] (T. 422). When she first met the Student she conducted a psychiatric evaluation and diagnosed the Student with Generalized Anxiety, a Depressive Disorder, and ADD or ADHD (D-Ex. 16; T. 422). It was reported that he had initial effects of a concussion due to a head injury in 2016 and residually had an exacerbation of his anxiety and depression (T. 422). The PNP testified that it had been reported that prior to the head injury the Student could manage and function with his depression and afterwards it became difficult to push through the anxiety and depression (T. 423).

The PNP testified that the Student has severe depression and anxiety (T. 425). In June 2019 the Student was not routinely going to school because of his depression and anxiety (T. 425). The PNP testified that the Student’s depression and anxiety made it difficult for him to function, to sleep properly, or get through the day at school without too much fear or panic (T. 425-426). When he did get to school, he had overwhelming feelings and wanted to leave (T. 426). The Student felt that it was hard to stay in school (T. 426). [REDACTED] provided medication management, therapy, and made suggestions to the District, such as a 504 plan with different accommodations, like breaks, half day schedules, or alternate schedules (D-Ex. 16; P-Ex. C; E; G; T. 426-427, 430-431).

The PNP testified that in July 2019, the Student was spiraling into an episode of anxiety and depression, which was caused by him getting overwhelmed with summer school work (P-Ex C; T. 437). He was able to complete some of it for a short time but it became too much (T. 437). The PNP sent another letter in October 2019, regarding the Student’s diagnosis, this time noting it was recurrent and severe (P-Ex. E; T. 439). Medication was still ineffective but he was still receiving therapy as part of his treatment (T. 440-441). The PNP recommended home-based tutoring to keep him from falling behind academically (T. 442-443). The PNP hoped that if the District could provide his academics in a 1:1 supportive setting, it could build his academic confidence and keep him from falling behind, which would further his poor self-esteem and depression (T. 443). Then they could work on part two, which was physically being in the building or around other people (T. 443). She also noted that if the Student was unable to get back to school then a more supportive placement may need to be considered like an Interim Day Treatment (“IDT”) or Adolescent Day Treatment (“ADT”) (T. 443-444).

The Director of Special Education testified that IDT was a program for general education students who attend through the BOCES program, as a temporary program (T. 688). The referral comes from the building principal if the principal feels a student may need stability or transition in or out of a program, or if they cannot access a full day of school (T. 688). The Director testified that the Student may have been a good fit for IDT but she does not chair IDT referrals (T. 695-696). [REDACTED] had noted that an IDT referral was discussed with the school (D-Ex. 14-8).

The Director of Special Education testified that ADT recommendations are only made through special education for students with IEPs (T. 689). The ADT program is housed at BOCES (T. 689). The Director of Special Education testified that she chairs those meetings and that the Student would not be a good fit because he is a high achieving student and ADT does not offer high level learning classes (T. 690, 697). She also testified that she has not had any students successfully graduate from that program (T. 690).

The PNP testified that the Student’s impaired functioning has impacted his academics demonstrated by the fact that he is significantly behind and has lost about a year (T. 452). His refusal to get out of bed and go to school was not an oppositional defiant refusal, and the behaviors and symptoms he was struggling with were not those of an average teenager (T. 453-454). The PNP recommended that the Student be classified as a student with a disability because his level of impairment was so severe, and went beyond the low level of supports that had been provided or recommended by the District (T. 455-456). The PNP testified that one cannot separate their cognitive or academic performance from their biochemical and environmental depression or anxiety (T. 472-473). Intellectually he is capable, but his mental health is blocking him from doing what he is capable of (T. 496-497, 499-500). The Student had shared with her that he wants to do well and thinks he can go to school and wants to go to school, but then would report that he was unable to go and would feel badly about being unable to complete what he thought were normal expectations for him (T. 475-476).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

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

The IDEA defines a “child with a disability” as a child with specific physical, mental, or emotional conditions, including a learning disability, “who, by reason thereof, needs special education and related services” (20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1]). One must consider whether a student’s condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA. See, Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 297-98 (S.D.N.Y. 2010); Application of the Dep’t of Educ., Appeal No. 11-152.

Under the IDEA, “children with disabilities” also includes children with a serious emotional disturbance. See, 20 U.S.C. §1401(a)(1)(A)(i); see also, 8 NYCRR §200.1 (zz). Section 300.8(c)(4)(i) of the IDEA and §200.1(zz)(4) of the Commissioner’s Regulations, define an Emotional Disturbance as a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

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

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

The Southern District of New York has held that a student must demonstrate that he/she has 1) exhibited one of the five listed symptoms, 2) over a long period of time, 3) to a marked degree, and 4) that this condition adversely affects the student’s educational performance. See, Eschenasy v. NYC Dep’t of Educ., 604 F. Supp 2d 639 (SDNY 2009).

Using this analysis, I find that the Student in this matter, has at least two of the listed symptoms of an emotional disturbance, that started to affect the Student in the 6th grade and has since become worse during the 2018/19 and 2019/20 school years without appropriate interventions by the District. The Student’s depression and anxiety have adversely affected the Student’s mood, ability to function, to get to school, to stay in school and his ability to complete schoolwork commensurate with his cognitive abilities. The Parent made attempts to remediate his depression and anxiety by getting him evaluated, calling mobile crisis, 24-hour crisis, placing him at [REDACTED], a referral to PINS, positive reinforcement, punishment, and made referrals to the CSE (D-Ex. 1; 7; 14; 16; 36-4; P-Ex. B; C; T. 528-530, 543, 658-659).

I find that the CSE’s determination that the Student was not eligible for special education services was not supported by the evidence in the record. It is clear from the evidence presented that the Student’s diagnosis and mental health concerns have been affecting the Student’s attendance and performance at school over a long period of time (since his ski accident in the 6th grade), to a marked degree, and that it has adversely affected the Student’s educational performance. The Student has not been able to consistently attend a full day of school during the 2018/19 and 2019/20 school years and his grades have declined (D-Ex. 29; 40; P-Ex. O). He failed one class in 9th grade (which he still failed in the summer) and five classes in 10th grade (D-Ex. 22; P-Ex. O).

At the hearing, the Special Education Coordinator (“SEC”) for the District explained that referrals occur when a parent makes a request, or if a staff member has concerns about a student or suspects a disability (T. 37-39). The student is first referred to the Response to Intervention (“RTI”) committee where the concerns are discussed, as well as interventions (T. 37-38). Then there are follow up meetings to look at a student’s response to those interventions and then possibly a referral to the CSE (T. 38). Despite concerns with the Student’s attendance and his grades declining, the Student was never referred to RTI (T. 77-78). The Student was on a modified schedule from approximately February/March 2016 through June 2018 (T. 517-518). It does not appear that the schedule was ever changed to get the Student to attend full time (T. 653). The Student continued on a modified scheduled through the 2018/19 and 2019/20 school years with 1:1 tutoring provided by the District.

The Parent made a referral to the CSE during the 2016/17 school year and the psychological evaluation from 2017 noted that his sleep difficulties and depression, which were identified as post-concussive symptoms, were impairing his daily function in all areas, including academics, social relationships and daily living skills (D-Ex. 4-8). His social emotional functioning revealed heightened levels of depression, anxiety, sense of inadequacy, attention problems and poor self esteem (D-Ex. 4-10). Despite the concerns highlighted in the evaluations and the fact that the Student was not in school full time, the CSE wanted to give the accommodations in the newly created 504 plan a chance to work (P-Ex. A; T. 37).

During the 2018/19 school year the Student continued to have trouble attending school and the District was aware (T. 95, 225-227, 239-240). The Parent had reached out to the District for help and although the District’s evidence indicated that the Student was provided with access to two guidance counselors and two school psychologists, updated evaluations were not provided, specifically an FBA, and mandated counseling services were not recommended in his 504 plans or as response to intervention (T. 72-73).

During the 2018/19 school year, the Parent sought help through mobile crisis and a 24-hour crisis center before placing him at [REDACTED] in January/February 2019 (T. 528-530). The Parent also obtained a psycho-social evaluation in January 2019 (D-Ex. 7). Despite his time at [REDACTED], the Student continued to struggle with attendance, homework completion and managing his emotions (D-Ex. 14; T. 40, 99-100, 102, 105, 236, 530-531). Attempts at a transition from [REDACTED] back to school did not go smoothly either but eventually the Student managed to get in school on a modified basis and was able to pass almost all of his classes, with the help of a tutor, demonstrating that the Student was capable of learning, but his social emotional deficits were interfering with his performance (D-Ex. 10; 27; T. 103-105, 235, 292-293).

Despite a difficult year with attendance and emotional issues, and his time in [REDACTED], the District did not refer the Student to RTI, did not conduct a 504 meeting upon his return, and did not recommend an evaluation of the Student’s needs. A 504 meeting was ultimately held on June 11, 2019, and only added a safety pass for the Student to access the guidance office, to address his anxiety in the school environment (D-Ex. 17-2).

The Parent made a second referral to the CSE in May 2019 and a meeting was held in August 2019. Despite the Student’s continued difficulty with depression, anxiety, attending school on full time basis, and his clinically significant and at-risk concerns outlined on the BASC, the CSE found the Student to be ineligible for special education services. No classroom observation or FBA were conducted, even though the referral was made in May while school was in session, and no one from [REDACTED] nor the treating Psychiatric Nurse Practitioner were invited to the CSE meeting.

An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other “appropriate assessments or evaluations,” as necessary to determine factors contributing to the student’s disability (8 NYCRR 200.4[b][1]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). Under the IDEA, a CSE may be required to consider special factors in the development of a student’s IEP. If a student’s behavior impedes his or her learning or the learning of others, the CSE must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior when developing, reviewing, and revising an IEP. See, 20 U.S.C. § 1414(d)(3)(B)(i); 34 CFR 300.324(a)(2)(i); 8 NYCRR 200.4 (d)(3)(i), 200.22 (b)(2). State procedures for considering the special factor of a student’s behavior that impedes his/her learning may also require that the CSE consider having an FBA conducted and a BIP developed for a student. See, 8 NYCRR 200.4(d)(3)(i); 200.22(a), (b).

The Second Circuit has explained that, when required, “[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student’s behaviors, leading to their being addressed in the IEP inadequately or not at all” (R.E. v. NYC Dept’ of Educ., 694 F.3d 167, at 190 (2nd Cir. 2012). Again, no FBA was conducted at the time of the CSE meeting, despite years of behaviors that kept the Student from attending school. See, Application of the Board of Education, Appeal No. 13-129. When the FBA was finally completed in March 2020, the CSE did not reconvene to review the evaluation, instead the 504 team reviewed the report on June 19, 2020 (D-Ex. 39).

The District presented a witness who testified that: no one who participated in the 2019 CSE meeting reported that the Student’s mood was affecting him while in class, that he had limited vitality in class, and the Student did not express or exhibit any fear of the school setting either (T. 52-55). This testimony is contradicted in the evidence presented. There was no evidence that demonstrated that the Student was in class long enough to gauge whether or not he was being affected by his disorders. His English teacher testified that he attended on the first day of class, filled out a goal sheet indicating that he wanted to participate and go to school, but then did not make it to school the next day. He clearly had limited vitality since he was not able to attend a full day of school on a consistent basis, since the 6th grade. His inability to get to school regularly for any amount of time demonstrated that the Student had some sort of fear or at least anxiety worth looking into, that was interfering with his attendance in the school setting. The only time the Student was able to appear for school was when he was scheduled to attend a 1:1 tutoring session. The PNP testified that the 1:1 tutoring provided a supportive environment that helped quiet his anxiety, which the Student admitted allowed him to take breaks and work at his own pace since he had a hard time with transitions between classes (D-Ex. 36-2; T. 501-502).

The Special Education Coordinator also admitted that attendance was a significant barrier to his performance and had been an issue since middle school (T. 55). The CSE did not believe the Student needed special education services to participate in coursework, but the evidence presented is contrary to that finding. Even with 1:1 tutoring in place from December 16, 2019 through March 3, 2020, the evidence showed that the Student still missed 11 out of 29 days of school (D-Ex. 37; T. 75).

The record reflects that the Student’s escalating social and emotional behaviors were known to the CSE at the time of the August 2019 meeting and had been increasingly affecting the student’s academics during the 2018/19 and 2019/20 school years (D-Ex. 4; 16; 17; 23; 29; 33; P-Ex. A; C; E; G; T. 44, 95, 100, 226-227, 289-290). The District was on notice of the Student’s increasing problems with attendance and motivation, which ultimately resulted in the Student being placed at [REDACTED] and then attending school on a modified basis. The Student’s attendance and lateness, caused by his mental health issues, continued to be a problem through the 2018/19 and 2019/20 school years, and the District failed to classify the Student for special education services.

The CSE had sufficient information to classify and recommended special education services, or at a minimum conduct an FBA to gather further information regarding the basis for the concerning behaviors. For all the above reasons, I find that the Student should have been classified as a Student with an Emotional Disturbance and that the District denied the Student of FAPE during the 2018/19 and 2019/20 school years.

DECISION

Based on a review of the entire record and the details in the findings of fact, as mentioned above, I find that the District incorrectly found the Student ineligible for special education services at the time of the August 2019 CSE meeting and denied the Student FAPE during the 2018/19 and 2019/20 school years. I further find that the Student meets the criteria for classification as a student with an Emotional Disturbance and that the CSE should convene immediately to review the Student’s evaluations, request any new evaluations, and receive updates from his mental health providers. I further find that the CSE should develop a program to address his social, emotional, and behavioral needs in a therapeutic environment. I will rely on the CSE team, to determine an appropriate placement for the Student. I am not comfortable with recommending a residential placement at this time since there are other less restrictive therapeutic environments that may address the Student’s needs that have not been explored. Nothing in my decision however, precludes the CSE in determining a residential program to be appropriate at the time of the meeting.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

1). ORDER THAT, the District shall convene a meeting of the Committee on Special Education within 10 schools days of this order to classify the Student with an Emotional Disturbance; and develop an IEP that reviews the Student’s academic, social, emotional and behavioral needs; includes the Student’s mental health providers for updated information; conducts any necessary updated evaluations; and recommends a therapeutic program.

SO ORDERED

DATED: December 7, 2020

Vanessa M. Gronbach

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, 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 review shall be personally served upon the opposing party within 40 days from the date of 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 of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

District Exhibits

No. Description Pages Dates

1. Neuropsychological Consultation Notes, 4pp. 5.12.2017.

2. Letter from Parent to District, 1p. 5.24.2017.

3. Consent for Initial Evaluation, 1p. 6.14.2017. 4. Psychological Evaluation 10pp. 7.27.2017. 5. WJ-ACT-IV Score Report, 2pp. 7.27.2017.

6. Educational Evaluation 2pp. 8.4.2017.

7. Psycho-Social Evaluation, 2pp. 1.21.2019. 8. Email thread 1p. 4.8.2019. 9. Email thread 1p. 4.11.2019.

10. Email thread 1p. 5.1.2019. 11. Email thread 2pp. 5.3.2019.

12. Email thread 3pp. 5.8.2019. 13. Email thread 3pp. 5.8.2019 14. Outpatient Progress Notes, 13pp. 5.14.2019. 15. Letter from Parent to District, 2pp. 5.16.2019.

16. [REDACTED] Letter 1p. 6.10.2019. 17. 504 Accommodations Plan 19/20, 3pp. 6.11.2019 18. Parent Referral signed, 1p. 6.12.2019.

19. Consent for Initial Evaluation signed, 1p. 6.25.2019. 20. Report Card 2018-2019, 1p. 6.28.2019.

21. Attendance Report 2018-2019, 1p. undated

22. Student Transcript - Grade 10, 1p. 7.25.2019.

23. Psychological Evaluation, 9pp. 7.29.2019. 24. Educational Evaluation, 2pp. 8.1.2019.

25. CSE Ineligibility Document 19/20, 2pp. 8.15.2019. 26. Due Process Complaint, 3pp. 9.16.2019.

27. Phone Log Guidance, 2pp. 9/18-9/19

28. Email from Parent, 1p. 10.2.2019.

29. Daily Attendance History, 8pp. 10.4.2019. 30. Email thread 2pp. 10.4.2019. 31. Email thread, 2pp. 10.4.2019.

32. Response to Due Process Complaint 3 pp. 10.7.2019.

33. 504 Accommodations Plan, 2pp. 5.16.2017.

34. Email thread, 3pp. 3.20.2019 35. Social History Report, 9pp. 7.17.2019. 36. Functional Behavioral Assessment, 7pp. 3.2.2020.

37. Tutoring Attendance Sheet 19/20, 3pp. undated

38. Attendance Codes, 4pp. undated

39. 504 Accommodations Plan, 9pp. 6.19.2020

40. Attendance Record 19/20 3pp. undated

Parent Exhibits

No. Description Dates Pages

  • • CSE Ineligibility Document 8/8/2017 (1 page)
  • • [REDACTED], Progress Notes 5/6/2019 (1 page)
  • • [REDACTED] Letter 7/24/2019 (1 page)
  • • FERPA Release 10/28/2019 (1 page)
  • • [REDACTED] Letter 10/31/2019 (1 page)
  • • Consent for FBA 11/10/2019 (1 page)
  • • [REDACTED] Letter 3/3/2020 (1 page)
  • • Student’s Medical Records from 5/2/19 (221 pages)

[REDACTED];

  • • Non Public-School Brochure undated (4 pages)
  • • 8th Grade Report Card 6/22/18 (1 page)
  • • Text message 9/5/19 (3 pages)
  • • Email between Parent and District 1/24/20 (1 page)
  • • Email between Parent and District 6/17/20 (1 page)
  • • Letter from Principal undated (1 page)
  • • 10th grade Report Card 7/1/20 (1 page)

Footnotes

[1] A detailed list of all exhibits is attached at the end of this decision.

[2] Reference to the Transcript shall be referred to as “T”.