NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NEW YORK STATE EDUCATION DEPARTMENT
(REDACTED) SCHOOL DISTRICT
(REDACTED) on behalf of her child, STUDENT
Petitioners, SED Case No. 552943
-against-
(REDACTED)
Respondent.
FINDINGS OF FACT AND FINAL DECISION
The Mother[1] and sole custodial parent of STUDENT filed an impartial hearing complaint dated June 24, 2021, and the (REDACTED), hereinafter referred to as the “District,” received it on the same date. (Ex. A) The Mother alleges a denial of a “free and appropriate public education” (FAPE) for the 2020 – 2021 and 2021 – 2022 school years. She originally requested an order to reimburse and/or prospectively fund “tuition, costs, and expenses” for a parental placement at both (REDACTED) in (REDACTED) and at the (REDACTED) including transportation for the 2020 – 2021 and 2021 – 2022 school years.
On July 6, 2021, the District filed a Motion to Dismiss for Insufficiency, and I issued an Interim Order finding legal sufficiency and denying the Motion to Dismiss on July 9, 2021. The
Mother filed an amended complaint dated July 16, 2021, after a June 25, 2021 “Committee on Special Education” (CSE) meeting. (Ex. B)
I conducted a pre-hearing conference call on September 13, 2021, setting issues and hearing dates. I conducted this hearing over a period of thirteen days on the following dates: November 8, 2021; December 1, 2021, December 2, 2021, January 4, 2022, January 10, 2022, January 12, 2022, January 26, 2022; January 27, 2022; February 4, 2022; February 11, 2022; March 16, 2022; [2] March 17, 2022; April 27, 2022; and June 29, 2022. The first day of the hearing was held in-person in the District, and the second day was held in-person in the District with all parties wearing masks due to the on-going Covid-19 pandemic. All subsequent hearing dates were held virtually. (Tr. 257) (REDACTED) represented the District accompanied by (REDACTED)[3] (REDACTED) represented the Mother.
The parties submitted a number of duplicate documents. Rather than take time away from testimony to reorganize documents, I entered both copies into evidence. Therefore, there are some duplications, such as District exhibit 4 and Parent exhibit D, although I only refer to one in this final decision. The parties submitted closing briefs on August 25, 2022 which is the record close date.
In New York State, hearing officers have authority to ask questions of counsel or witnesses for the purposes of clarification or completeness of the hearing record, and I did so a number of times in this hearing.
"Nothing contained in this subparagraph shall be construed to impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record."
8 NYCRR § 200.5[j][3][vii].
FINDINGS OF FACT
STUDENT is now (REDACTED)-year-old student. (Tr. 1521) When she was six years old, she was diagnosed with Asperger’s Syndrome.[4] (Tr. 1528; Ex. 30 at 1) More recently, a psychologist in (REDACTED) provided her diagnosis of STUDENT as: Autism Spectrum Disorder, Level 1, without accompanying intellectual impairment; Unspecified Neurodevelopmental Disorder...; Anxiety Disorder, Unspecified; Persistent Depressive Disorder, currently mild; Specific Learning Disorders in Reading, Writing, and Mathematics. (Ex J at 27)
STUDENT’s strengths are that she is very sweet, helpful, caring, creative, and she tries hard. (Tr. 1083, 1309-10, 1533-5) She is energetic, kind, good-natured, cooperative, and always polite and courteous. (Tr.1083, 1250, 1309) “She is very social.” (Tr. 1309) “She has average intelligence, and testing has repeatedly shown that” and she has some academic strengths. (Tr. 1087; Ex. 31 at 27) She is motivated to do well. (Ex. R at 29) She has strong rote memory and vocabulary; she reads well; and she has good math skills. (Ex. M at 3; Ex. 4 at 5) Behaviorally, she is eager to please, demonstrates a caring attitude toward others, and responds well to direction and feedback. (Ex. R at 14, 30; Tr. 1310) Her weaknesses are her lack of impulse control and poor attention. (Tr. 1532, 1534-5) She has “limited executive function skills,” and she struggles with abstract reasoning, problem-solving, applying what she knows to novel problems, and “inhibitory control.” (Ex. R at 29; Tr. 1088, 1310-11) STUDENT has poor personal boundaries, poor peer relations, and she has difficulty identifying and assessing social cues. (Ex. R at 30; Tr. 1086, 1536, 1251-2)
STUDENT and her family lived in (REDACTED) and then moved to (REDACTED) where she had an IEP for fourth, fifth, and sixth grades. (Tr. 1526-7) STUDENT attended a resource room program, and she had speech therapy in (REDACTED). (Tr. 1530) By then, she was on medication for "Attention Deficit Disorder" (ADD). (Tr. 1532-3) STUDENT and her family moved to (REDACTED) during the summer before she started seventh grade. (Tr. 1537) She began seventh grade in a resource room program in the District’s middle school, but she did not do well in it. (Tr. 1538) By the second half of that school year, the District moved STUDENT into a seventh-grade co-taught class with speech therapy and counseling. (Tr. 1538-40) For eighth grade, STUDENT was in another District co-taught class with speech/language therapy and individual counseling. (Ex. 1) Her language skills were declining as compared to those of her typically developing peers. (Tr.1549) STUDENT’s social challenges became more obvious that year. (Tr. 1542-4) There were incidents in which other girls excluded her, especially in the lunchroom and in a physical education class dance performance. (Tr. 1544-8) Her younger brother told the family that STUDENT was in a bad social situation in school. (Tr. 1548) At this time, STUDENT had no friends, so she turned to binge watching television and the internet. (Tr. 1556-7) Her Mother testified that STUDENT developed anxiety about going to school, she was seeing a therapist, and she began taking an anti-anxiety medication. (Tr. 1558)
While STUDENT was in eighth grade, the Mother had (REDACTED) conduct an Auditory and Language Processing Evaluation of STUDENT on April 14, 2018. (Ex. 21) STUDENT’s hearing was within normal limits bilaterally with good speech discrimination in quiet and some impairment in the left ear in noise. (Ex. 21 at 9) Her abilities to understand the spoken message and make inferences were in the 1st percentile, and her ability to follow spoken directions of increasing complexity was in the 5th percentile. (Ex. 21 at 10-11) The crux of her report was that STUDENT had an auditory processing disorder with a cluttering disorder. (Tr. 588) A cluttering disorder “has to do with speech organization and her ability to speak fluently and clearly.” (Tr. 627) (REDACTED) made a number of recommendations for home and school. (Ex. 21 at 11-12; Tr. 1551)
(REDACTED) was STUDENT’s treating psychiatrist from the summer of 2018 until her last appointment with him on June 9, 2020. (Ex. 1) He wrote a one-page letter dated January 21, 2021, when he had not seen her for seven months. He addressed it “To Whom It May Concern,” and it included STUDENT’s then most recent diagnoses. (Ex. I) The American Psychiatric Association (APA) issues the "Diagnostic and Statistical Manual of Mental Disorders" (DSM) which provides standard criteria for the identification and classification of mental disorders. (REDACTED) wrote STUDENT's diagnoses using three of the five axes in the DSM-IV. However, on May 18, 2013, the APA issued its fifth edition (DSM-5) which eliminated the previous five-axis format. This is not merely a matter of (REDACTED) using an outdated format or old semantics. The DSM-5 changed the criteria and classification of a number of disorders, including autism spectrum disorder (ASD) which is relevant in this hearing. As this document reports outdated information which cannot now be relevant concerning STUDENT, I gave little weight to this letter’s content other than the dates it reports. The Mother testified that STUDENT has not seen another psychiatrist since June 9, 2020, when she last saw (REDACTED). (Tr. 1689)
The summer after eighth grade, STUDENT attended a program at the (REDACTED) School, which is a private residential special education school in (REDACTED), and she had a good experience there. (Tr. 1570) STUDENT started attending “(REDACTED) (hereinafter referred to as "(REDACTED)") for ninth grade. (Tr. 1570) (REDACTED) is a private school which is not approved by the New York State Education Department, but it had just recently opened in (REDACTED).[5] (Tr. 1570; 1576-7; Ex. 24). The new school had only a few students, so STUDENT received a great deal of individual attention there. (Tr. 75, 1572) There is a discrepancy in the record. The Mother testified that (REDACTED) is a school for students with “learning differences.” (Tr. 1572, 1635) This is also reflected in (REDACTED)’s report (“Despite special education services, including placement in (REDACTED)... “) because she interviewed the Mother. (Ex. G at 4) However, (REDACTED) believes that (REDACTED) “was misinformed” that (REDACTED) is a special education school. (Tr. 334-5) STUDENT did not work with a special education teacher at (REDACTED). (Tr. 278) Furthermore, (REDACTED) never sent a special education report to the District or a special education teacher to a CSE meeting for STUDENT but did send other reports and teachers. (Tr. 55, 335) “(REDACTED), because they are not special education teachers,... (Tr. 55) Furthermore, the extensive reports from (REDACTED) refer to all of STUDENT’s teachers and the subjects they taught her, but there is no mention of any special education service or special education teacher. (Ex. 29, Ex. 30) (REDACTED) may be a general education school for students with learning differences, but this discrepancy in the record is unresolved because no (REDACTED) representative testified in this hearing and no (REDACTED) literature or website was admitted into evidence. I will address this discrepancy infra.
STUDENT’s online activities were curtailed because she no longer had her own phone, but she found other ways to get online, such as going to the public library, using someone else’s phone, using an Xbox, or using Alexa. (Tr. 1573-5) She would want to go to school early to use a computer to get online. (Tr. 1575) During ninth grade, she gave out her full name and address and pictures of herself to strangers online. She met somebody in person at (REDACTED) (a pizzeria) which is literally half a block” from her home. (Tr. 1577) During ninth grade, STUDENT was receiving outside speech therapy, attending a weekly group therapy session, going to a social skills group at (REDACTED), and seeing (REDACTED) every three months for medication. (Tr. 1577, 1687-8: Ex.1 at 6)
Toward the end of ninth grade, STUDENT stopped seeing her psychiatrist. (Ex. I) The summer after ninth grade, STUDENT went back to the (REDACTED) School, but she had a very different experience there that year. (Tr. 1578) She made no friends that summer, and she had access to the internet, so she spent her time “watching Netflix, inappropriate shows, and meeting people online.” (Tr. 1578) Her Mother took away her computer, but then she could not do any of her work there. (Ibid.)
(REDACTED), a District school psychologist, conducted a psychological evaluation of STUDENT on July 27, 2020. (Ex. 23; Tr. 54) STUDENT was attentive, and talkative, (Tr. 504-5) On the “Wechsler Intelligence Scale for Children, Fifth Edition” (WISC-V), STUDENT had scores of: Verbal Comprehension 98, Visual Spatial, 92, Fluid Reasoning 88, Working Memory 97, Processing Speed 86, with a Full-Scale IQ score of 91. All composite scores were in the average or low average range with her Full-Scale IQ in the average range. (Ex. 23 at 2; Tr. 518-22) Ms. [REDACTED] conducted a “Connors-3 Self Report” because STUDENT had been diagnosed with ADHD. (Ex. 23 at 5) She scored in the average range for all but “learning problems” which was in the “at risk” range. (Ex. 23 at 5; Tr. 525) (REDACTED) established a rapport with STUDENT, and she testified that STUDENT was not in “any kind of a crisis” at the time. (Tr. 566-7)
Also on July 27, 2020, (REDACTED), evaluated STUDENT using a “Clinical Evaluation of Language Fundamentals” (CELF-5) because it “taps into the best receptive and expressive language, language content and language memory.” It's one of the more commonly given tests, in terms of language. (Tr. 631-2; Ex. 22) She did not use the “pragmatic profile” questionnaire on the CELF-5 because it is completed by a classroom teacher, treating speech therapist, or parent, and she did not administer a reading comprehension subtest. (Tr. 648, 658) (REDACTED) explained that some of STUDENT’s scores: Core Language and Receptive Language, dropped “significantly” from 2016 when she had previously been administered the CELF-5. (Ex. 1, 22; Tr. 662-4) As students get older, the language demands on them become greater, and STUDENT's language deficits impact “her ability to glean the main idea, make inferences, predictions, higher-level thinking skills, which are all,... necessary for the classroom.” (Tr. 663) (REDACTED) also sent the CSE some potential speech goals for STUDENT. (Tr. 649-50) (REDACTED) was alone with STUDENT during her evaluation, and STUDENT did not appear to be in an emotional crisis to her. (Tr. 660)
July 29, 2020, CSE Meeting
On July 29, 2020, the District CSE reconvened chaired by (REDACTED), District Assistant Director of Pupil Personnel Services (PPS). The CSE not only discussed STUDENT’s academics but also discussed her “globally.” (Tr. 44) (REDACTED) attended the meeting, and she presented her evaluation results. (Tr. 499, 531, 533) (REDACTED) was not present during the CSE meeting so (REDACTED), a District speech teacher, reviewed (REDACTED) evaluation of STUDENT for the Committee. (Tr. 57, 751-2; Ex. 22) She explained that STUDENT’s expressive language scores were higher than her receptive language scores; her score on Following Directions and Sentence Assembly were average; but her Understanding Spoken Paragraphs and Semantic Relations, Receptive Language Index and Language Content Index were all below average. (Tr. 753) The CSE reviewed information from (REDACTED) teachers, including STUDENT’s needs and suggested goals. (Tr. 54-5, 63-5) STUDENT had some difficulty “navigating peer relationships at times,” but (REDACTED) was working with her on strategies to deal with social conflict and recognize the perspective of peers. (Tr. 65-6) (REDACTED) reported under Social Development:
“She has been noted to overuse and over engage in communication with peers (specifically through social media) and is not always aware of how this leads to negative reactions. Guided reflection with support from her teachers has helped her navigate this difficulty, and her skills in this area were noted to be emerging.” (Ex. 2 at 6)
Based upon the (REDACTED) reports, the CSE found that a self-contained special education class would be too restrictive for STUDENT. (Tr. 75)
The July 29, 2020, CSE developed an IEP for STUDENT for 10th grade in the 2020 – 2021 school year. This IEP placed her in an integrated co-teaching program, with daily resource room, individual counseling, and individual and group speech therapy in the District High School. (Ex. 2 at 1) The rationale for this placement was that (REDACTED) was working on grade level curriculum but it had small classes so STUDENT was getting more attention and support than she would have in a typical general education class. (Tr. 75) A co-taught class would give her that additional support but from a special education teacher. (Tr. 76-7) There are approximately twenty-three students in a co-taught class and typically six or seven have IEPs, but it could be as many as twelve. (Tr. 279) The CSE also recommended group speech therapy so that STUDENT could work on pragmatic skills, social conversation, reciprocity, and perspective taking with peers. (Tr. 82-3) The Mother did not agree with bringing STUDENT back into the District program although she did not discuss any specific reasons for that decision at the CSE meeting. (Tr. 90)
(REDACTED), District Director of Technology, testified that there are “two aspects to security. One is securing your physical network, making sure your network is secure from intruders,... and the other way is by law and various regulations for child safety. (Tr. 767) The District filters dating and gaming websites, and the students have Chromebooks which cannot be used for chatting even from their homes or other locations. (Tr. 767, 771) Students can email each other using their Chromebooks but they cannot email anyone outside the District. (Tr. 212, 770) There are also logs that show where the student has gone online that can be shared with parents, and the District offers workshops for parents on the use of filters, applications, and other limitations for safe internet use at home. (Tr. 769, 773-4) However, anyone who becomes “very good at hacking” can find a way around filters. (Tr. 771-2)
The District did not implement the July 29, 2020, IEP because STUDENT's Mother returned her to (REDACTED) for tenth grade. (Tr. 1668) STUDENT was participating in “Dialectical Behavior Therapy” (DBT) with (REDACTED). He testified that DBT is “a treatment for people with very intense emotions that lead to either self-destructive behaviors or other behaviors that may have negative outcomes.” (Tr. 915-16) People who go into DBT are not “aware of what they feel and therefore, they tend to escalate into problematic behavior such as, self-injury, suicidal behavior, substance abuse, or other kinds of impulsive behavior.” (Tr. 916-7) (REDACTED) treated STUDENT once per week from August 28, 2019, until October 13, 2020, and STUDENT and her Mother attended group therapy with another therapist in the same practice. (Tr. 946-7, 926-7; Ex. H) (REDACTED) testified that STUDENT’s:
“Problems really centered around impulses, wanting to do things. There was self-injury involved. If STUDENT was frustrated or STUDENT would get angry or STUDENT would be in a situation where she didn't know how to handle it, she could result in some sort of self-injury, cutting or scratching usually being the result. (Tr. 928-9)
He testified that STUDENT had been sending (REDACTED) and putting things on the internet “from a desire to get attention from -- a desire to want to be liked and to be loved.” (Tr. 929-30; 949) He recalled that she had a diagnosis of depressive disorder. (Tr. 960)
“Q: And with regards to what you just mentioned about STUDENT contacting men and boys, how, if at all, did you work on that with her?
A: Not well. I'll be honest. I think she was very reticent to be able to talk about it. One, probably from shame. I think she was very embarrassed by the fact that she was engaging in those behaviors and also not wanting to deal with them because part of it she really didn't want to stop. Not wanting to change them, because it was fulfilling a need..” (Tr. 931-2)
STUDENT has difficulty expressing how she feels and “it's hard understanding how much she actually does understand.” (Tr. 932) If she was frustrated or angry or be in a situation she didn't know how to handle, that could result in some sort of self-injury, cutting or scratching. Her self-injurious behavior may have improved but not her interpersonal relationships. (Tr. 933-4)
In tenth grade, there was a new boy at school who STUDENT became fixated on him, and she obsessed about him after he came to her home a few times. (Tr. 1581-2) STUDENT texted him repeatedly even though she was receiving Dialectical Behavior Therapy (DBT) with (REDACTED) who was working on her social and emotional issues. (Tr. 1582-3) (REDACTED) believes “her emotions were a distraction to her.” (Tr. 963) The Mother testified that STUDENT could not focus on anything other than this boy during tenth grade. (Tr. 1582; Ex. J at 2)
Reports from (REDACTED) do not confirm the Mother’s contention that STUDENT could not focus on anything other than a particular boy during tenth grade. To the contrary, STUDENT’s grades and extensive (REDACTED) teacher reports establish that she made progress in school during tenth grade. While STUDENT’s Language Skills and American History grades went from B+ to B- during tenth grade, her other grades either improved or were maintained. (Ex. 24) This is not just subjective grading by caring teachers. STUDENT’s tenth grade teachers reported specific progress in most areas and cited data in a Winter Progress Report 2020 while pointing out her weaknesses and making suggestions for additional future goals:
(REDACTED).” STUDENT has become increasingly aware of the benefits of using a strategic approach to managing academic challenges and utilizing strategies learned with greater confidence.... She has become less reliant on others when she is challenged.”
“Since the beginning of the semester, STUDENT has also displayed advances in her ability to generate effective solutions to social problems.” (Ex. 29 at 1)
Reading Comprehension “... STUDENT has learned to ask herself both literal and inferential questions while reading to check her own comprehension and to make connections between new and previously learned information.” (Ibid.)
Expressive Language (verbal and written) “Expressive language skills have continued to develop this semester... STUDENT required decreasing support when generating her essay based on her outline.... (Ex. 29 at 2)
Literature “STUDENT has begun to internalize what to highlight in order to discern main ideas from less relevant information. Most recently, she has shown some resistance to highlighting and making margin notes... The use of fidget devices seems to be more distracting than helpful... STUDENT has done very well in vocabulary assessments.”
(Ex. 29 at 3)
“STUDENT is an engaged writer who enjoys the challenges of the class. She has a high degree of interest in writing creatively and is emerging in her ability to revise and edit her work independently.” (Ex. 29 at 3)
Integrated Mathematics “STUDENT engages in all of her written math work with a high level of independence, focus, attention to detail, and a commitment to accuracy. She attempts all work independently but often advocates for herself by seeking clarification... She is highly participatory in class, always ready to answer questions, seek clarification, and generally contribute to class discussions. Her per (REDACTED) on all topics covered is strong.” (Ex. 29 at 5)
American History “STUDENT has been somewhat successful in extrapolating material from the history curriculum... STUDENT can intermittently verbalize cause and effect scenarios related to historic events” (Ex. 29 at 7)
At the end of tenth grade, STUDENT’s tenth grade teachers reported specific progress in various areas citing data in a Spring Progress Report 2020 while pointing out areas of weakness and making suggestions for future goals:
(REDACTED) “Her year has been characterized by gains in reading comprehension, expressive language, academic and social problem solving.... but she continues to struggle to utilize skills independently.” (Ex. 30 at 1)
Reading Comprehension, she “improved her ability to summarize, question, clarify and predict through reciprocal teaching while reading her Focus novel... Such progress has been noted in oral summaries, as well as written responses to comprehension questions.”
On a Wechsler Individual Achievement Test, 3rd Edition (WIAT-III), her Reading Comprehension score was 23% up from 19% in ninth grade. (Ex. 30 at 1)
STUDENT showed a solid understanding of literal questions (91% correct) and inferential questions were (43% correct.) (Ex. 30 at 1)
Expressive Language (verbal and written) “Positive gains can be noted with regard to STUDENT’s expressive language goals. In particular, STUDENT worked to strengthen her ability to paraphrase work assigned in Focus as well as her content classes.” (Ex. 30 at 1)
“Formal assessments indicated that STUDENT’s score on the Expressive Vocabulary subtest score of the WIAT-III was within the average range (47th percentile).... Throughout the year, STUDENT demonstrated improvement with her written organization. She continues to need reminders to use graphic organizers in order to organize her writing.” (Ibid)
Academic and Social Problem Solving “A challenge for STUDENT this year was implementing self-monitoring and problem-solving techniques she has been introduced to during her time at (REDACTED). As a result, she relied on teacher encouragement and prompting to implement these techniques. As the semester progressed, STUDENT became better able to reflect and discuss her actions and how they affected her success in school and the larger (REDACTED) community... There have been examples of STUDENT showing growth and maturity when problem solving communication breakdowns with other students and realizing the role she has.” (Ex. 30 at 3)
Metacognitive skills “STUDENT demonstrated a comprehensive understanding of literary themes as the year progressed, thereby allowing her a broader understanding beyond the simple narrative of the works presented.” (Ex. 30 at 3)
American History “STUDENT has demonstrated understanding of the material presented.”
Art “STUDENT continued to be an active, engaged participant in all classes with a strong ability to express herself visually. Her confidence in her artistic process grew throughout the year.” (Ex. 30 at 9)
Furthermore, the Mother testified:
“I think that at (REDACTED) she was progressing,... (REDACTED) was definitely, you know, a good place for her, but it was a day program which inherently limited scope. Also, in terms of what it covered, like there was no counseling and... It did not really address what was happening during off school hours. Also, just her, you know, her anxiety and her impulsivity which does not just happen during school. (Tr. 1633-4)
I find that STUDENT made educational progress, including social/emotional progress, at (REDACTED) during tenth grade as a matter of fact.
During the Covid-19 pandemic and lockdown, when schools were closed, STUDENT was home attending school virtually. (Tr. 1693)
"During that entire spring she was doing a lot of remote learning and over the summer she had unstructured time and that's when she was getting more and more impulsive, and things were kind of falling apart for her. She was, you know, engaging in self-harm and so after having that extended period with no structure and no feedback and COVID and everything else, she was doing so poorly that I had to get an emergency intervention to help her." (Tr. 1675-6)
STUDENT (REDACTED) (Tr. 1561-2) The family tried to supervise her, but it was stressful for both STUDENT and her Mother. (Tr. 1693-4)
“She had to be on her computer all day for school which, you know, was stressful in the constant monitoring. Then she had to do her homework but, you know, I couldn't let her do that. Plus, all the kids were home and, you know, we literally had to have one secure place where everybody would put their iPads. And, you know, I've got five kids. Four of them have, you know, devices. We've got computers everywhere, plus the school issued computers. Like the (REDACTED) School gave us -- I forget the kind of computer we have. It was hard. I mean --And the kids helped. Everybody helped with STUDENT in that regard, but it was -- I think it was difficult for everybody.” (Tr. 1586)
The Mother took STUDENT's technology (REDACTED). (Tr. 317, 1491, 1561-2, 1617) The Mother testified that STUDENT was picking at her cuticles and mosquito bites until they bled, and she was not sleeping at night.[6] (Tr. 1589) The Mother testified that STUDENT started engaging in self-harm by cutting herself. (Tr. 1380, 1587-8; 1592) STUDENT rode her bicycle into a parked car and (REDACTED). (Tr. 1601) The Mother described incidents in which STUDENT was physically aggressive with her fighting over the use of technology. (Tr. 1592) “She was just not doing well at all.” (Tr. 1589-90)
A few weeks after the July 29, 2020, CSE meeting, on August 24, 2020, the Mother wrote to the District:
“STUDENT requires a more intensive, comprehensive educational program given her social and emotional needs that have deteriorated to a point of crisis.” (Ex. 35 at 3-4)
The letter goes on to discuss STUDENT’s Father and the role he plays, and that the Mother was obtaining a private evaluation of STUDENT, but it does not explain the nature of the crisis. (Ex.
35 at 3-4; Tr. 96) (REDACTED) testified that prior to receiving the August 24, 2020, letter, the District had no information that STUDENT was “in crisis.” (Tr. 335) The Mother testified:
“I guess the question... who is informed? When I tell (REDACTED) you know, is the School District informed? Do I have to tell 20 other people?... When I contact and reach out to the gym teacher and then I go and I meet with her and I express my deep dismay at the way this was handled, you know, is that not noticed?” [7] (Tr. 1565)
On September 4, 2020, the District sent a letter to the Mother that the CSE would reconvene when she had the private evaluation and responded about the Father. (Ex. 36; Tr
98) The Mother wrote to the District that she did not receive a response to her previous letter.
The District sent another copy of the September 4, 2020, letter to the Mother. (Ex. 39; Tr. 102)
The Mother’s previous attorney recommended that she consult (REDACTED), who started working with the family in August 2020. (Tr. 1358, 1154, 1378) The Mother was concerned about STUDENT’s behavior over the summer and how she would be able to function in the world in the future. (Tr. 1378-81) It was then the height of the Covid-19 pandemic and everyone in New York State was still on lockdown. (Tr. 1282) (REDACTED) reviewed STUDENT’s previous educational records and had an extensive interview with the Mother who completed a “hugely long survey.” She used the “Adaptive Behavior Assessment System” (ABAS-3) which is a parent questionnaire that reports the parent’s perspective of the student’s adaptive function, communication, social skills, and daily living skills. (Tr. 120-1, 402, 1374-5 1603-4; Ex. G at 1) (REDACTED) also asked the Mother some questions from the pragmatic profile checklist on the CELF-5. (Ex. G at 3) (REDACTED) testified that the Mother reported to her that STUDENT was engaging in self-harm behaviors at home. (Tr. 1380, 1383) (REDACTED) wrote a five-page report that includes her conclusions and suggestions. (Ex. G)
(REDACTED) informed the Mother that STUDENT was “too high a safety risk” for her to conduct a neuropsychological evaluation in an out-patient setting due to her being “dysregulated at home, the daily risk to her personal safety, and ongoing risk of further involvement with the legal/justice system because of STUDENT’s online behavior when unsupervised.” (Ex. G) (REDACTED) reported, “Therefore, STUDENT’s mother retained me to help the family apply to (REDACTED)...” (Ex. G at 2) (REDACTED) consults with (REDACTED), although she testified that she does not get paid by (REDACTED). (Tr. 1507-8, 1513) On October 15, 2020, (REDACTED) conducted a virtual interview with STUDENT “in advance of her admission to (REDACTED).” (Ex. 3 at 1)
(REDACTED) diagnosed STUDENT with:
Autism Spectrum Disorder, Level 2
Social Pragmatic Communication Disorder
Mixed Expressive Receptive Language Processing Disorder Attention Deficit Hyperactivity Disorder (secondary to ASD)
Mixed Anxiety-Depressive Disorder. (Ex. G at 5)
In her testimony, (REDACTED) admitted that STUDENT was making educational progress at (REDACTED), but it was slower progress than that made by typically developing peers. Therefore, some of STUDENT’s scores on norm referenced assessment instruments went down even though she actually made progress. (REDACTED) agreed that this phenomenon is called “The Matthew Effect.” [8] (Tr. 1502-3) She also admitted that her report is not an evaluation of STUDENT despite the fact that she provided new diagnoses, and (REDACTED) testified that is “atypical for someone to do without a proper evaluation.”[9] (Ex. 25; Tr. 122, 137, 143, 146-7, 541)
The Mother testified that she had concerns for the safety of her family:
“So is one of my primary objectives to shield my family from, you know, STUDENT releasing our address to weird people out there? It’s not my primary objective but it is certainly like another factor. I feel like I can’t narrow down like, you know, STUDENT’s needs are number one, absolutely, but the fallout from the totality of this is huge and has been. The safety of STUDENT, you know, I fear for her safety. I mean, I fear for her safety when she almost lights the house on fire. I fear for her safety when she goes bike riding a block away from our house... she collided with a car... (Tr. 1618; See also 1676)
Although the Mother testified that STUDENT was a safety risk to herself and her family, i.e., a danger to self and others, the Mother did not want to hospitalize STUDENT locally:
“Q: Why didn't you just hospitalize her locally?
A: I thought that would be really bad for her emotional stability and self-esteem and I didn't not think that it was warranted. I wanted it to be a productive stay, I guess.”
(Tr. 1697)
(REDACTED) presented (REDACTED) to the Mother as a safe structured environment, and it was a temporary transitional program for four to six months. (Tr. 1606, 1638)
STUDENT began eleventh grade during the 2020 – 2021 school year at (REDACTED).
(Tr. 108) In another letter to the District dated October 12, 2020, the Mother wrote that (REDACTED) was evaluating STUDENT and “STUDENT will soon be placed at (REDACTED) RTC in (REDACTED).” (Ex. 35) On October 19, 2020, four days after (REDACTED) interviewed STUDENT virtually, the Mother unilaterally removed STUDENT from (REDACTED) and placed her at (REDACTED), a “residential treatment center” (RTC) in (REDACTED), for “stabilization and assessment purposes.” (Ex. P; Ex. CCC; Tr. 1609) By “stabilization,” the Mother means:
“I mean she needed an intervention to help get her calmed down. I mean she was carving lines and letters into her legs and arms with scissors. We needed to address that. And she was having, you know, racing thoughts. She was unable to sleep.... (REDACTED) had medical doctors there... they could try to get her, not only emotionally regulated, but medically regulated as well.”
(Tr. 1697)
(REDACTED), District psychologist, explained that “stabilization would refer to if a child is in crisis and requires immediate treatment that they would get the treatment and the therapies that they required in order to stabilize and be able to function better –and more independently.” (Tr. 473)
In preparation for a December 11, 2020, CSE, (REDACTED), who manages most out-of-district students for the District, and (REDACTED) spoke with (REDACTED), both from (REDACTED). (Tr. 108, 225) (REDACTED) reported that STUDENT was adjusting well to residential living, and she was doing well working on academic packets without a teacher. But she was “definitely having difficulty navigating her impulsivity in non-academic settings” and with her peer relationships. (Tr. 112, 115-6)
(REDACTED) wrote a letter addressed “To Whom It May Concern” dated December 9, 2020, although he had not seen STUDENT for two months. (Ex. H; Tr. 938) He wrote:
“STUDENT has an extensive history of impulsive and self-injurious behaviors that have led to serious consequences... These recent events have illustrated that STUDENT is unable to reside in her home....STUDENT does have many strengths, however at this time her emotional and behavior problems justify her needing to attend an intensive therapeutic setting so she can learn how to manage her behaviors and emotions safely.” (Ex. H)
He testified in this hearing that his letter did not specify a therapeutic day or residential placement for STUDENT because:
“Again, at this time, I was not seeing her, and I guess I, you know, what I wrote was an intensive therapeutic setting. I think that's open for some sort of interpretation and I was not maybe even sure at the time when I wrote this exactly what she needed it's just I didn't think she would be able to succeed in a regular public-school environment.”
(Tr. 939)
But (REDACTED) also wrote that STUDENT is not able to reside at home. (Ex. H) He discussed it with the Mother “at length” and STUDENT really could not be left alone at home for too long. (Tr. 939, 941, 955) (REDACTED) did not communicate with any District personnel or any personnel from (REDACTED) before he wrote the letter. (Tr. 949) He believed STUDENT was at risk of (REDACTED). (Ex. H; Tr. 963) Hospitalization was an option; however, it is for “acute” situations in which the individual is in danger in the moment. (Tr. 957, 966)
December 11, 2020, CSE Meeting
While STUDENT was at (REDACTED), the CSE reconvened on December 11, 2020, for a virtual requested review. (Ex. 3) In addition to mandated members, participants included: STUDENT’s biological father; (REDACTED), clinician from (REDACTED); (REDACTED) District psychologist in charge of students who are not in-district; and (REDACTED), teacher from (REDACTED). (Ex. 3 at 1; Tr. 396) The Mother explained that “STUDENT’s increasing compulsion with technology, as well as her involvement in (REDACTED) and peers via the internet, were the impetus” for her to retain (REDACTED) who suggested that STUDENT go to (REDACTED). (Tr. 400) The Mother explained that STUDENT’s lack of judgment creates a safety risk, and that (REDACTED) enforces sleep and has a zero-technology policy. (Ex. 3 at 2)
(REDACTED) presented her report to the CSE.
“(REDACTED)’s evaluation, diagnoses and recommendations are based on a historical review of STUDENT’s pre-existing educational, psychiatric, psychological, and neuropsychological reports, as well as on interviews with (the Mother).”
(Ex. 3 at 1)
Although (REDACTED) confirmed that she had not actually evaluated STUDENT, she provided new diagnoses for her. (Tr. 137; Ex. 3 at 2) (REDACTED) diagnosed STUDENT with:
Autism Spectrum Disorder, Level 2
Attention Deficit Hyperactivity Disorder (secondary to ASD)
Social Pragmatic Communication Disorder
Mixed Expressive Receptive Language Processing Disorder
Mixed Anxiety-Depressive Disorder. (Ex. G at 5) (REDACTED) also recommended that STUDENT go to a therapeutic residential school after (REDACTED). (Ex. G at 5)
The Mother expressed concerns about STUDENT’s impulsivity, executive function, and interpersonal skills. (Tr. 476) She believed that STUDENT needed twenty-four-hour supervision in a residential school. (Tr. 138-9, 404, 542) This was new information for the CSE because previous reports from (REDACTED) teachers indicated that STUDENT was making progress in their day school. (Tr. 131, 143, 405, 542-3) The Mother described STUDENT’s abuse of technology and social media at home, and that she was (REDACTED) and that led to her placement at (REDACTED). (Tr. 138-9, 400) (REDACTED) explained that:
“... from the CSE's purview, residential treatment centers are typically for students whose emotional and academic needs are so intertwined that they are unable to make progress in other settings, whether it's a therapeutic day program or less restrictive environment. All of the information that we had been given to that time noted that STUDENT was able to make progress on her academic, social and emotional goals in a far less restrictive environment than a residential setting, but we did note that pending a psychiatric evaluation, certainly we would consider new information. (Tr. 139)
(REDACTED) staff explained their program as therapy with independent academics, i.e., self-directed packets, without direct instruction. (Tr. 207, 397-9) “According to the (REDACTED) staff, STUDENT has exhibited impulsivity in non-academic settings, and they could not make a future placement recommendation until closer to discharge.” (Ex. 3 at 2; Tr. 135, 405) Furthermore, the date of discharge was at the sole discretion of the parents. (Tr. 154, 159-60) (REDACTED), of (REDACTED), noted “that while they were aware of STUDENT’s struggles with appropriate use of technology, that STUDENT was engaged, focused, and progressing on academic and social goals while in ((REDACTED)... STUDENT’s progress on her social skill goals was still with the support of adults, and she was not always independently utilizing strategies taught.” (Tr. 131-2, 399-400; Ex. 3 at 2) However, STUDENT’s technology issue did not intrude into her school day. (Tr. 133) According to (REDACTED), STUDENT was progressing well academically. (Tr. 210) And “positive gains were noted in regard to STUDENT’s expressive language goals... and her score on the Expressive Vocabulary subtest of the WIAT-III fell within the average range.” (Ex. 3 at 5; Tr. 210) Additionally, (REDACTED) did not believe that a residential placement was appropriate for STUDENT based upon her evaluation and interview with STUDENT. (Tr. 544-5)
(REDACTED), a District certified Speech Language therapist, reviewed the previous speech evaluation for the CSE. (Tr. 588-89). The CSE recommended daily speech and language services alternating between individual sessions and small group sessions. (Tr. 590-2)
The CSE increased counseling on the IEP to address the Mother’s concerns. (Tr. 138, 406-7, 545) The CSE wanted a current psychiatric evaluation, and until they received it, the program, related services, and goals in the July 29, 2020, IEP would remain appropriate. (Tr. 138; Ex. 3 at 2) The Mother continued to be concerned about STUDENT returning home because there had been a home visit during which STUDENT engaged in some of the same behaviors as she did previously at night. (Tr. 198-9, 1033, 1050) The CSE planned to reconvene after they had the psychiatric evaluation of STUDENT. (Ex. 3 at 2; Tr. 138, 546, 568) The District would pay for the psychiatric evaluation and tried to secure a psychiatrist who could practice in (REDACTED). When that failed, the District planned to arrange for, and pay for, a psychiatric evaluation when STUDENT returned to New York State. (Tr. 134-5, 410-13) The District issued a Prior Written Notice. (Ex. 8)
The Mother hired (REDACTED), a psychologist from (REDACTED), to evaluate STUDENT while she was at (REDACTED), and (REDACTED) conducted an in-person evaluation of STUDENT for five hours on February 23, 2021. (Ex. J at 1; Tr. 1153) She reviewed the previous testing, and she saw that STUDENT had very recently had cognitive testing, so she could not “repeat that test, it affects the validity if I were to do that...” (Tr. 1082) She administered the Kaufman Test of Educational Achievement, Third Edition (KTEA-3) Although STUDENT’s Reading Comprehension was in the 3rd percentile, her Letter and Word Recognition and Decoding Fluency were in the 77th percentile and 79th percentile respectively. Similarly, her Math Concepts and Applications were in the 13th percentile while Math Fluency and Math Computation were in the 58th percentile and 42nd percentile respectively. (Ex. J at 10) Again, in writing, her Spelling and Writing Fluency were both in the 79th percentile but her Written Expression was in the 8th percentile and her Listening Comprehension was in the 2nd percentile. (Ex. J at 10)
(REDACTED) did not speak with anyone from (REDACTED) or from the District. (Tr. 1155-6) She interviewed the Mother virtually at length and the biological Father virtually, and she spoke with (REDACTED), STUDENT’s therapist at (REDACTED). (Tr. 1154) The Mother reported to (REDACTED) that STUDENT “came after her” when she tried to take her phone. (Tr. 1166, 1592) “She physically came after me, we had physical altercations on several occasions.” (Tr 1695-6) The Mother testified about incidents concerning a phone:
A: “I would either obtain it or try to obtain it and she would push, shove, scratch, et cetera.
Q: Did she become -- When you say shove, scratch, did she become aggressive with you?
A: Yes. Very.” (Tr. 1697)
The Mother also told (REDACTED) that STUDENT had texted a friend sixty times, but she did not ask STUDENT to confirm that. (1164) (REDACTED) gave the Mother the “Behavior Rating Inventory of Executive Function, 2nd Edition” (BRIEF2) which is a common questionnaire.[10] (Tr. 1016) However, she followed up with (REDACTED) using the “Adaptive Function Measure” for a “fresh perspective.” (Tr, 1122) (REDACTED) gave the Mother and (REDACTED) the “Social Responsiveness Scale” that assesses picking up and interpreting social cues and managing perseveration. (Ex. J at 17; Tr. 1121) A score of 60 or above is clinically significant, and STUDENT’s scores from both individuals were well above 60. (Tr. 1122)
STUDENT did not display “any sort of unusual speech, echolalia, nothing repetitive about that. Her eye contact was generally pretty good...” (Tr. 1103) (REDACTED) stressed that girls on the autism spectrum present differently than boys on the autism spectrum. (Tr. 1092-7, 1109, 1129) In achievement, STUDENT “does great with, kind of, simple, surface-level stuff, and not so much for things that require a lot of deep-dive depth, you know, complex cognitive thinking.” (Tr. 1114-6) (REDACTED) conducted personality testing with STUDENT, and she testified:
“What's interesting is, she feels like peers perceive her as, you know, attractive, appealing, stimulating, interesting, but doesn't, you know -- but also what came out is there are social insecurities that she has that get her to, like, engage in behaviors to try and get approval and acceptance, and she is just not really aware of those.” (Tr. 1125)
(REDACTED) also conducted additional projective testing. (Tr. 1125-6) She administered the “Autism Diagnostic Observation Schedule, Second Edition” (ADOS-2) which is “considered a gold standard assessment for autism” and it is included in many evaluations for autism.[11] (Tr. 1097-8; Ex. J 15-17) “It was especially telling that STUDENT came out above the diagnostic cutoff” as some girls with autism spectrum disorder score below the cutoff. (Tr. 1091) (REDACTED) had (REDACTED) complete a Vineland Adaptive Behavior Scale -Third Edition questionnaire concerning STUDENT’s Communication, Daily Living Skills, and Socialization.[12] (REDACTED) scored STUDENT low in all three domains.
(REDACTED) diagnosed STUDENT with:
Autism Spectrum Disorder, Level 1, without accompanying intellectual impairment;
Unspecified Neurodevelopmental Disorder...;
Anxiety Disorder, Unspecified;
Persistent Depressive Disorder, currently mild;
Specific Learning Disorders in Reading, Writing, and Mathematics. (Ex J at 27)
She found STUDENT to be “particularly naïve” and “very motivated” to be liked, accepted, loved, and have attention, and that combination can put her in danger. (Tr. 1089) She also recommended that the biological parents “work together, either with a mediator or some kind of therapist that's experienced with high-conflict family dynamics to kind of develop a more cohesive way of relating to each other, parenting...” (Tr. 1140) (REDACTED) strongly recommended that STUDENT not return home after (REDACTED) because of the “extent of her needs... but the big, big thing is the degree of supervision she needs... unless somebody is watching her constantly, she can go and access the internet at two o’clock in the morning... “(Tr. 1131-3) However, (REDACTED) does recognize that in addition to therapeutic boarding schools, there are ‘wraparound supports’ available. (Tr. 1168) She refers to her evaluations as “a snapshot in time” and she uses a template with: “This report represents STUDENT’s functioning at a specific point in time. As things change and she develops, the conclusions and recommendations will need to be updated.” (Ex. J at 2; Tr. 1158) On March 2, 2021, while STUDENT was still in eleventh grade, the Mother completed an application to the (REDACTED) School (hereinafter referred to as “(REDACTED)”) in (REDACTED). (Ex. IHO 1 at 1)
April 9, 2021, CSE Meeting The CSE reconvened on April 9, 2021for another virtual requested review because STUDENT would be discharged from (REDACTED) soon. (Tr. 190) In addition to the mandated District members, participants included: (REDACTED), STUDENT’s biological father; (REDACTED), the District’s consultant psychiatrist; (REDACTED) clinician from (REDACTED); (REDACTED), teacher from (REDACTED). (Ex. 3 at 1)
(REDACTED) presented her psychological report, although she felt that she was rushed through it. (Ex. 4; Tr. 1141-3) The Mother testified:
“This was the long-awaited critical report that (REDACTED) was to present. It was a lengthy report in detail... and I think after like a couple of minutes (REDACTED) was telling her to summarize it and to move forward and like speed through it. It was like kind of astonishing to me because we waited, waited, for this report, couldn't get any information about the next steps, couldn't make plans and they didn't even want to hear it.” (Tr. 1641-2; 1673) [13]
However, (REDACTED) did explain her psychological evaluation results and indicated that STUDENT’s functioning was lower than the testing suggested. (Tr. 416) (REDACTED) admitted that she does not know how New York State classifies educational disabilities, but in (REDACTED), they classify educational disabilities using the student’s primary medical diagnosis. (Tr. 1144) (REDACTED) confirmed that the report of her evaluation on the resulting April 9, 2021, IEP is correct. (Ex. 4; Tr. 1146)
On March 15, 2021, the District received an undated “(REDACTED) Psychiatric Summary” that reports upon admission, STUDENT was taking the following medications prescribed by her home psychiatrist: Vyvanse 70 mg. for inattention and hyperactivity, and (REDACTED) each morning. (Ex. N at 1; Tr. 475) The Mother testified that these medications had been prescribed for STUDENT by (REDACTED) months earlier. (Tr. 1689-90) The Summary document, signed by a nurse practitioner, indicates that (REDACTED) adjusted STUDENT’s medications:
“Medications adjustments since admission:
- • Vyvanse 70mg: Reduced incrementally with observation of behaviors, and eventually discontinued due to continued inattention and intrusive behaviors, as well as continued significant hyperactivity at nearly maximum dosing..... (Ex. N at 1)
(REDACTED) reported that (REDACTED) has a status system so that students move along three levels with the third top level being “Leadership.” STUDENT had “attained the highest level of Leadership Status and maintained it for most of her stay,” She would soon be ready for discharge. (Ex. 4 at 2; Tr. 193-4, 417) (REDACTED) suggested a small, structured class of six students for STUDENT. (Tr. 204) (REDACTED) Academic Progress Summary includes a strong recommendation that STUDENT transfer to a therapeutic boarding school. (Ex. M at 5-6; Tr. 174)
At the April 9, 2021, CSE meeting, the Mother requested a residential placement “with around the clock supervision” as STUDENT had been a safety risk to herself and displayed impulsive and (REDACTED) behavior from home, especially on the internet with peers and (REDACTED). (Ex. 4 at 2; Tr. 145, 197-200, 202, 218, 419) (REDACTED) agreed that STUDENT needed a therapeutic boarding school for the same reason because of the “extent of her needs... but the big, big thing is the degree of supervision she needs... unless somebody is watching her constantly, she can go and access the internet at two o’clock in the morning...” (Tr. 1131-3) (REDACTED), who was also at the meeting, agreed with a residential placement for STUDENT. (Tr. 1643)
The CSE considered therapeutic day and residential placements and it rejected residential placement. STUDENT could make progress toward her educational goals in a day program making a residential placement too restrictive for her. (Tr. 200-1) Additionally, much of the social, emotional, and safety issues took place in the evening at home and STUDENT could be maintained in her home, especially with support. (Tr. 201) The CSE planned to place STUDENT in a therapeutic day program, but in case STUDENT was suddenly released from (REDACTED), the CSE developed an interim IEP. The interim IEP placed STUDENT in a home instruction program for ten hours per week with counseling and speech therapy awaiting the psychiatric evaluation and placement in a day program. (Tr. 203; Ex. D) (REDACTED), District Director of Pupil Personnel, testified about home instruction in the District. When a student has a complex medical need and cannot attend school, such as chemotherapy, or has a mental health need and the District is looking for an alternative placement, the student may be placed on temporary home instruction. (Tr. 859) For a high school student, home instruction is two hours per day plus related services, such as STUDENT’s counseling and speech therapy, but it is meant to be temporary. (Tr. 860) The goal is for the student not to fall behind while they are not in a school. (Tr. 862) Most students have an in-person special education teacher come to their home, but a few use iTutor which is a virtual home instruction system. (Tr. 865) STUDENT would also have her related services of counseling and speech either with a District provider or a provider from an outside agency. (Tr. 866) Meanwhile, the CSE would send packets of documents out to therapeutic day programs for placement for STUDENT. (Ex. 4; Tr. 213, 415, 418-20, 864) The list of day programs included some that are actually residential schools that also accept day students, such as (REDACTED). (Ex. 51)
On April 16, 2021, the Mother emailed a letter to the District rejecting the April 9, 2021, IEP and giving the District notice that she was going to place STUDENT in (REDACTED) and seek reimbursement from the District. (Ex. 48 at 3) At the time, she did not yet know which day program the CSE would recommend for STUDENT. (Tr. 1648-9, 1682, 1685-6) The Mother signed a contract with (REDACTED) on May 6, 2021. (Ex. EE)
(REDACTED) discharged STUDENT on May 3, 2021, while she was still in eleventh grade. (Ex. CC) On May 4, 2021, the Mother placed STUDENT in (REDACTED). The (REDACTED) is a national behavioral health organization that has schools in many states, including (REDACTED). (Tr. 1279) (REDACTED) is a residential therapeutic school for students with emotional deficits, autism, or learning disabilities where staff is on the campus twenty-four hours per day to monitor students. (Tr. 1302, 1305, 1346) It is a year-round program including the summer so students can reside there. (Tr. 973)
(REDACTED), Director of Education at (REDACTED), testified in this hearing. There are about sixty-two students in (REDACTED) in grades six to twelve at the school, i.e., ages eleven to eighteen, all with disabilities. (Tr. 972, 1226, 1238-42, 1357) Classes are on a 12:1:1 model, meaning up to twelve students, one teacher, and one aide per class. (Tr. 976, 1242, 1308) Teachers at (REDACTED) are either certified in special education or in a content area, and teaching assistants have either two years of college or pass a (REDACTED) state exam. (Tr. 1244) Each student is assigned to a social worker and a behaviorist. (Tr. 972) Students can graduate with their own school district’s high school diploma or a (REDACTED) diploma. (Tr. 1227)
A (REDACTED) “Psychiatric Evaluation” of STUDENT dated May 12, 2021, states: “Diagnostic Evaluation Not Needed.” (Ex. Q at 1) It provides the following diagnoses of STUDENT:
“Autism Spectrum without intellectual deficits, level 2
ADHD, combined type
Learning Disorder in Math, Reading, Writing, by history
Anxiety Disorder, unspecified” (Ex. Q at 5)
The (REDACTED) "Psychiatric Evaluation" reports “She has no history of aggressive or dysregulated behavior or self-injurious behavior.” (Ex. Q at 2) To the contrary, the Mother gave extensive testimony in this hearing that STUDENT has been aggressive with her, and that she has displayed dysregulated and self-injurious behaviors at home. (Tr. 1166, 1606-9, 1618, 1663, 1675, 1696) The Mother also reported that STUDENT displayed dysregulated and self-injurious behaviors to (REDACTED) and to (REDACTED) both of whom reported it in their letters to the District. (Ex. H, Ex. G) Furthermore, the Mother’s medical insurance company had “two boxes of documents” detailing “suicidal ideation, aggression, self-injurious behavior including cutting, and poor emotional regulation...“(Ex. CC at 3; Tr. 1700) In this hearing, the Mother could not explain this discrepancy in the record. (Tr. 1699)
"Q: I'm looking at the psychiatric report from (REDACTED) which is Exhibit Q and I look at Page 2 which says, and I'm quoting the report, 'She has no history of aggressive or dysregulated behavior or self-injurious behavior.' Can you explain why it says that when you've testified at length that she has all three?
A: I don't know. I don't know that -- I don't know if they asked me that.
She's never been aggressive with anybody other than me. I'm not sure what they asked and what I answered to be honest." (Tr. 1699)
This discrepancy is important because the amended complaint in this hearing alleges that STUDENT needs “constant supervision” to prevent “access to the internet and access to opportunities to self-harm” as the reasons she needs a residential placement. (Ex. B at 5, pt. k) Does she actually harm herself or not? In an attempt to clarify this discrepancy in the record and complete the record, I requested a copy of the application the Mother completed to apply to (REDACTED) which was specifically listed on an October 21, 2021, subpoena. The subpoena includes:
“16. Any and all completed intake forms, school application forms, services for forms and/or contracts, releases, and other application materials regarding STUDENT.”
(Subpoena, October 21, 2021)
These documents were never produced by either party to submit into evidence in this hearing. I received a copy of the application on July 25, 2022, to complete the record and clarify it. I emailed both attorneys who agreed that I should place it into evidence as an IHO exhibit which I did. (Ex, IHO1) As the record was not closed yet, I offered both attorneys the opportunity for additional testimony concerning the application, which neither attorney requested.
(REDACTED) social worker, testified that (REDACTED) uses a “milieu therapy” approach which is multidisciplinary, providing social coaching and executive functioning prompts to students in the moment giving them immediate feedback. (Tr, 974) (REDACTED) also uses a “Positive Behavior Intervention Support “(PBIS) system. (Tr. 1192, 1238, 1305, 319) Students carry a token sheet of the behaviors they are working on and at the end of every period, students get feedback from their teacher or track their own performance. (Tr. 979, 1249-50, 1319) There is a three-tier phase system, and Phase 1, the top phase, permits students to have more independence and they assess their own behaviors. (Tr. 1320)
Students have individual schedules in school, and they move from class to class, and building to building, however, there are staff members in the hallway or in their classroom doorway to monitor peer interactions. (Tr. 1253) (REDACTED) staff has a daily team meeting plus weekly professional development sessions, and supervision by an instructional coach. (Tr. 1245, 1303) Additionally, (REDACTED) uses Microsoft Teams to communicate student concerns in real time to teaching staff and residential staff. (Tr.1304-5)
Students live in cottages that hold up to twelve students although (REDACTED) tries to space students out so that it is usually seven to eleven in a cottage assigned by gender and age. (Tr. 973, 1194) There are (REDACTED). (Tr. 1188) STUDENT shares a room with a peer in a cottage for eight girls. (Tr. 1196) Student electronics are monitored by an IT department through software that not only reports the screen, but also can see keystrokes, so if there are any inappropriate searches, the student is caught quickly. (Tr. 1204) Students at (REDACTED) have laptops with access to the internet but also with a filter so that they can only assess certain websites. If a student accesses a ‘red flag,’ their laptop is shut down. (Tr. 1307, 1342) WIFI is only available to certain students unless they figure out how to get around the school firewall. (Tr. 1205)
A typical school day at (REDACTED) starts between 7:15 am and 7:30 am with hygiene, students making their beds, and tidying their rooms. (Tr. 1188) Breakfast is between 8:30 am to 9 am sitting in the dining room by cottage with a staff member, and the students are in school from 9 am to 4 pm. (Tr. 1216) “From the hours of 3:00 p.m. to 4:00 p.m., students receive additional help with homework and class work completion, if needed, and then they have access to e-mail, and computer use for a period of 30 minutes.” (Tr. 977, 1306-7) After school, they are picked up by their evening residential staff, and they go back to their cottages. Dinner is from 5 pm to 6 pm, and students sign up for a staff-monitored evening activity from 6 pm. to 7:15 pm. each night, including physical activities such as swimming or basketball, to more silent activities, like Dungeons & Dragons, magic cards, or Pokémon cards. (Tr. 1189-91) Then there is (REDACTED) time which is down time in the cottages from 8 pm to watch television or play video games. (Tr. 1190) All students are in bed at 10:30 pm. (Tr. 1200)
There is awake staff in the cottages overnight. (Tr. 1188, 1198, 1208) The overnight team works from 11:00 pm to 7:00 am, and conducts a bed check every fifteen minutes. (Tr. 1208) There are few overnight incidents; usually two or three a year. (Tr. 1209) New direct care staff either have college degrees or else past experience with a special needs population. They receive four to six weeks of in-person and online training that includes HIPAA, professionalism, shadowing staff, suicide prevention, and restraint training. (Tr. 1184-7) Most residential supervisors either have relevant graduate degrees or are working toward one., and they make rounds of the buildings. (Tr. 1187, 1198-1200, 1303) Staff in the cottages rotate. (Tr. 1197-1200) There are activities on the weekends, and some campus-wide activities, such as a super bowl viewing party. (Tr. 1211)
When a student is privately funded at (REDACTED), like STUDENT, the school develops a treatment plan that mirrors the information on a (REDACTED) IEP. (Tr. 1321-2; Ex.
L) STUDENT has been making satisfactory progress on the goals on her treatment plan. (Tr.
1323) STUDENT is “pretty independent” in her life skills, such as her hygiene and getting ready for the day or bed, although she works on self-initiation. (Tr. 1200-1)
STUDENT has moved into Phase 1, the top phase, so she is more independent, and she assesses her own behaviors. (Tr. 1320) She can also transition from one building to another independently checking in with the supervisor before and after which she does a few times per day. (1342-3) Cognitively, she “tests at almost average” in many areas, but it is impacted by her emotional deficit, lack of impulse control, and poor executive function. In school, STUDENT’s independence is at about “50%” in that she can move through content, but she needs comprehension check-ins, “consistent” support, prompting, and preferential seating. (Tr. 1315, 1336-7) She often interrupts the class discussion, (Tr. 1318) STUDENT has been making satisfactory progress toward her goals although there have been “ups and downs” as she struggles with external factors. (Ex. DD; Tr. 1323-4) STUDENT’s biggest on-going issues are social situations, misreading social cues, and becoming fixated on a particular peer or event. (Tr. 1201-2) Within the classroom environment she does quite well, but when there is a peer of interest, she loses social and physical boundaries, and she needs redirection. (Tr. 1313-14) (REDACTED) testified that STUDENT’s social interactions with peers have been inconsistent at (REDACTED). (Tr. 1256,1314) Recently she has been interested in certain male peers and more impulsive. (Tr. 1257)
(REDACTED) teacher and instructional coach, testified in this hearing. She teaches English and a new State required course (REDACTED). (Tr. 1301) Ms. (REDACTED) is STUDENT’s lead teacher who is responsible to develop her treatment plan and track it. (Tr. 1308-9, 1321) Looking at her testing, STUDENT’s adaptive life skills[14] and executive function are weak. (Tr. 1310) She does well in discussions, and she is always willing to participate. (Tr. 1311) However, she processes information while she is trying to communicate so she needs to rephrase and restate. (Tr. 1311-2) When STUDENT enters a classroom, she needs prompting to isolate external matters and focus. (Tr. 1312) She can still make inappropriate “off color” remarks in class and did so the day before Ms. (REDACTED) testified in this hearing. (Tr. 1348)
There have been “incidents” involving STUDENT at (REDACTED). STUDENT created an extra email account so she could communicate with her special friend who also created another email account. (Tr. 1347) It took “a couple of days” for the school to find out about it. (Ibid,) It happened the week before Ms. (REDACTED) testified in this hearing, i.e., the week of March 10, 2022. (Tr. 1347) STUDENT and some peers went into another student’s room and took some small items that did not belong to them. (Tr. 1228-9) Then STUDENT’s special friend made a vague suicidal statement and she tried to get around the firewall on her computer to communicate with him. (Tr. 1203-4, 1229, 1214) (REDACTED) testified that STUDENT had difficulty removing herself and shutting down her computer the week before he testified.
“Q: Has STUDENT ever been on what you call “safety assessment”?
A: From what I can recall, she was placed on safety assessment upon returning to campus once due to returning with the marks of self-harm from when she was home. So, when she came to campus, she was placed on safety assessment so that she could be assessed by someone to ensure if there was any continued risk, if she was presenting with future oriented thought process and thought content and, you know, didn't have any intent or plan to harm herself or someone else. (Tr. 1033)
(REDACTED) testified that on two home visits, she had two Zoom calls because there were incidents at home:
A: “There were concerns just about her being able to meet expectations regarding interacting with family, not isolating in her bedroom, not trying to gain use to electronics that she has been told she is not able to. So, both of those Zoom calls were for me to explore with STUDENT any challenges that were present in the home and to try and reenforce that the same expectations and behaviors that are expected here on campus are also expected when she is home for a visit. (Tr. 1050-1)
Q: You talked about one of the home visits an issue of self-harm, how do you know?
A: Because I had communication with (the Mother) consistently. She was able to inform me that she had observed that STUDENT had engaged in self-harming behavior.
Q: Did you see any marks on STUDENT?
A Yes. When she came back to campus, the first time I saw the marks on her arms and the second time (the Mother) provided me with a photo and STUDENT also showed me when I was on a Zoom call with her. (Tr. 1051)
STUDENT has been on computer restrictions several times for trying to communicate with other students. She no longer had access to a computer, there were discussions with her behaviorist, and instruction on technology safety. (Tr. 1317) (REDACTED), Director of Education at (REDACTED), testified that STUDENT would have the credits she needs to graduate, and she is “on track to graduate” at the end of this 2021 – 2022 school year. (Tr. 1281-2) REDACTED, STUDENT’s teacher, testified that STUDENT should graduate in June 2023. (Tr.1325) The Mother testified that she also expects STUDENT to graduate from (REDACTED) in June 2023. (Tr. 1690) Although STUDENT was in eleventh grade when her Mother completed the application to (REDACTED), she estimated that STUDENT would be there for three years. (Ex. IHO1 at 3) Based upon the record that is before me, it is impossible to discern when STUDENT will have sufficient high school credits to graduate and whether she will stay at (REDACTED) beyond that time.
(REDACTED) provides transition services in the form of courses for students. STUDENT took “(REDACTED)” in which she learned and practiced the skills necessary to work as a waitress in the on-campus café. (Ex. R at 11) Her teacher observed, “STUDENT seems to enjoy being in the work environment and thus far seems capable of the job responsibilities she is being asked to perform.” (Ex. R at 11) She took a “Life Skills” class in which she showed herself to be “a very capable student.” (Ex. R at 10) STUDENT took a “(REDACTED)” course, and her teacher, (REDACTED), reported that STUDENT:
“has a naïve understanding of the college experience and academic expectations. And it is likely that STUDENT will need ongoing transitional services beyond the traditional years in order to acquire more independent functioning and will need a transitional living program after she completes her high school coursework.” (Ex. R at 12)
Her Mother believes that STUDENT will need “a lot” of unspecified transition services, and she expects STUDENT to become independent eventually. (Tr. 1702-4)
(REDACTED) has a transition program (REDACTED) that goes up to age twenty-two for students after high school graduation. Some students “perhaps aren't ready to reintegrate into their household or into college or a job as expected.” (Tr. 1052) In the transition program, they live in a group setting similar to a cottage where there is staff available to provide the social coaching and prompting. (Tr.1052-3) These graduates learn specific life skills like cooking and traveling to and from a job; they have internships, and they explore what college might look like in terms of a community course. (Tr. 1053, 1701-2)
The (REDACTED) team has discussed that STUDENT’s would benefit from an extended residential transition program after she graduates high school. (Tr. 1325) (REDACTED) testified that STUDENT will need “to involve transition services to be able to have experience, whether it's in a career opportunity with life coach skills to be able to practice those in more of a protective and supported environment.” (Tr. 1300, 1349) Ms. (REDACTED) works on transition planning after (REDACTED) as the school’s Post-Secondary Coordinator. (Tr. 1231) Even so, the Mother testified that STUDENT, at the age of (REDACTED), has not registered with OPWDD, ACCES-VR, Medicaid, Social Security, nor any other New York State or (REDACTED) agencies. (Tr. 1704-5) When questioned about these agencies that provide adult disability services, the Mother testified, “I don’t know what you are talking about.” (Tr. 1705) June 25, 2021, CSE Meeting The CSE reconvened on June 25, 2021for a virtual annual review although the CSE had no new information since the last meeting on April 9, 2021, when (REDACTED) presented her evaluation. (Tr. 236-7, 243, 432) Furthermore, there was no teacher or representative from (REDACTED), STUDENT’s then current school, at the meeting because (REDACTED) staff declined to participate. (Ex. 5 at 1; Tr. 433-4) There was also no report from (REDACTED) because STUDENT had not been there very long. (Tr. 243-4)
(REDACTED) and (REDACTED), the two private psychologists, attended the meeting. (Ex. 5 at 1) STUDENT had been accepted in the (REDACTED) day program. (Ex. 60; Tr. 237-8) The Mother again requested a residential placement with twenty-four-hour supervision and to change STUDENT’s disability classification from “OHI” to “autism.” She believes that a student’s classification impacts services “to some extent.” (Tr. 1691) (REDACTED) asked about a change in classification, and she was told that the CSE would consider it when it had a psychiatric evaluation. STUDENT’s father, wanted to know whether classification determined level of service and would a change in classification get STUDENT a residential placement. (REDACTED) explained to him that it would not. (Tr. 146, 245, 465, 1645; Ex. 5 at 2) The CSE did not change STUDENT’s disability classification. There were many new diagnoses from (REDACTED). (Tr. 246) “Other health impairments still seemed appropriate because she had so many influencing factors and, again, we really wanted information from a District psychiatric to round out a robust conversation concerning the autism classification.” (Tr. 246)
Based upon STUDENT’s educational progress at (REDACTED) and her progress at (REDACTED), the CSE again found that a residential placement would be too restrictive for STUDENT. (REDACTED) testified,
“(REDACTED) is a stabilization program so if she was discharged from (REDACTED), it would mean that she was stabilized, so a therapeutic day program would be appropriate to meet her needs given the nature and supportive learning environment with the therapeutic supports built into those programs.” (Tr. 438)
The CSE placed STUDENT in the (REDACTED) program in a 6:1:1 class with group and individual speech therapy and group and individual counseling. (Ex.5; Tr. 437, 791, 824, 886) The (REDACTED) program has much of what was recommended for STUDENT, including a small, structured setting with specialists who are familiar with autism, a 6:1:1 class that (REDACTED) recommended, and it offers counseling, and speech/language therapy. And the (REDACTED) program was in the least restrictive environment because it is a day program. (Tr. 252-3, 439) The June 25, 2021, IEP also provides Parent Training twice per month for an hour because the Mother was having difficulties managing STUDENT at home. (Tr. 253-4; Ex. 5 at 1) The CSE also recommended "extended school year" (ESY) services of speech therapy and counseling to prevent "substantial regression" in those areas over the summer. (Tr. 253-4)
(REDACTED), the Principal at (REDACTED), testified about (REDACTED).
[15] (Tr. 778-9) The (REDACTED) Program is housed in a school building with other programs. (Tr. 810) The (REDACTED) Program partners with (REDACTED). (Tr. 779-80) (REDACTED) reviews every application to the (REDACTED) program checking for the right fit, and (REDACTED) determines which level of service each student needs. (Tr. 781) STUDENT was accepted into Phase 3 which is the lowest level of need, and these students receive counseling from one of the (REDACTED) doctorate level school psychologists rather than from (REDACTED). (Tr. 783-4, 814) (REDACTED) is a special education school, so all the teachers are special education certified. (Tr. 785) The curriculum is in line with the New York State Standards and the school gives Regent’s examinations, so that the (REDACTED) provides the instruction, but the home District grants the diploma. (Tr. 786, 825) Students can receive Regents diplomas with a foreign language waiver because the program does not include foreign language. (Tr. 807-8) Some students remain in the (REDACTED) program to the age of twenty-one. (Tr. 812) (REDACTED) also has two full-time nurses, and it offers speech therapy. (Tr. 838, 814, 911) The staff team meets formally weekly to review the progress of the current students and to screen any potential students and has constant communications and informal meetings. (Tr. 787, 789) There are weekly "(REDACTED)"meetings in which teachers go over student progress and issues. (Tr. 901-2)
(REDACTED) special education English teacher in the (REDACTED) program, testified that she teaches grades 9, 10, and 11 in preparation for the New York State Regents examination. (Tr. 884-5, 887) She testified that students in the (REDACTED) program have autism, ADHD, mood disorders, school phobias. learning disabilities, anxiety disorders, depression, or bipolar disorder. (Tr. 887) Although her students are working on the New York State Standards, there are modifications such as re-teaching new skills and repetition. (Tr. 888-9) For example, they may read something from Shakespeare and then watch it online or see the film or listen to a song about it. (Tr. 890, 892) She takes data toward student goals at least once per week. (Tr. 900) Behaviorally, there is a (REDACTED) school-wide behavior support system so students can receive up to eight points per class two each in four categories: location (in your seat before class starts); following directions; completing work and preparedness; and self-control. Students carry their point sheets with them when they go from class to class, and they can earn up to seventy-two points per day. (Tr. 893-4) Rewards involve Friday afternoon clubs, such as fitness, arts and crafts, and jewelry-making, and making purchases at the Reward Store. (Tr. 894, 906) There is a class on social/emotional values. (Tr. 839) (REDACTED) also uses the “(REDACTED) Social Emotional Learning Curriculum,” an online platform, that addresses how to manage behaviors or develop coping mechanisms for problematic behaviors and emotional regulation. (Tr. 895, 902) Each student has individual counseling and group counseling up to five students. (Tr. 897)
(REDACTED) has transition options and supports for graduating students. It has an Early College Program in partnership with (REDACTED) Community College and SUNY (REDACTED), so some students take a class on a college campus with a (REDACTED) teacher to prepare them to be on a college campus. (Tr. 793) (REDACTED) also has links with Access New York[16] and OPWDD[17], and the (REDACTED) staff assists families with registration for these agencies. (Tr. 812-3) The first period of school is also used to address transition goals, completing interest inventories, and career development. (Tr. 803)
Generally, there are about one hundred sixty students in (REDACTED). (Tr. 796) Occasionally, (REDACTED) has a few students who have been (REDACTED). (Tr. 798-9) Some of the students in the (REDACTED) program have been in a residential treatment center (RTC). (Tr. 814) There is a crisis management system as all the staff are trained in Crisis Prevention and Intervention. (Tr. 802) [REDACTED] also has a therapeutic support team of four staff members led by a psychologist for students who are having a hard time going to class or following a rule. (Tr. 802) The staff training is about 75% prevention and being proactive, and about 25% crisis management physical redirection techniques. (Tr. 803) (REDACTED) is a closed campus so that students may not leave but there are no time-out rooms. (Tr. 804, 806) Approximately 80% of the (REDACTED) students are college-bound. (Tr. 817)
(REDACTED) has a ‘no electronic device’ policy so that homeroom teachers take technology from students and lock it up in the morning and return then it to the students at the end of the day. (Tr. 806-7, 833, 910) Students are escorted in the building, including to the lunchroom and the bathroom where there is only one student at a time. (Tr. 837) In the (REDACTED) Program, students have individual schedules and move from class to class, however, there are teachers who serve as monitors in all the hallways. (Tr. 909) (REDACTED) special education math teacher, testified that students who miss class for counseling or speech can make up the work they missed in a ninth period tutorial where they can get some one-to-one instruction. (Tr. 832, 840) The (REDACTED) staff interviewed the Mother and STUDENT. (Tr. 1651) The Mother was concerned about the classification of the other students in the program, the shortness of the school day, the bus ride, the level of supervision, and STUDENT’s susceptibility to (REDACTED). (Tr. 1653-4) Additionally, (REDACTED) did not have a summer program. (Tr. 1682) The Mother rejected the District’s offer of the (REDACTED) and kept STUDENT at (REDACTED).
The Mother’s medical insurance company initially denied coverage for STUDENT’s stay at (REDACTED), but the Mother won an appeal and received a letter to that effect dated January 14, 2022. (Ex. CC) The Medical Director of the insurance company found STUDENT’s placement at (REDACTED) from November 18, 2020, to May 3, 2021 to be a “medical necessity.” (Ex. CC at 4) The insurance company reviewer found:
“The patient was admitted to this inpatient mental health residential treatment on 10/19/20 due to suicidal ideation, aggression, self-injurious behavior including cutting, poor emotional regulation, poor decision making and insight, extreme impulsivity, dangerous behavior, including (REDACTED), extremely poor boundaries, poor social cues and communication including social pragmatics, poor attention, hyperactivity, racing thoughts, inability to assess risks of danger to self, disorganization, inability to function appropriately independently, and difficulty processing and understanding language.... “(Ex. CC at 3)
Initially, the Mother sought reimbursement for (REDACTED) from the District as a claim in this hearing. (Ex. A at 13) The insurance letter is dated January 14, 2022. On February 4, 2022, the ninth day of this hearing, the Parent withdrew her request for reimbursement for (REDACTED) because her medical insurance reimbursed her for expenses at (REDACTED). (Tr. 1065; Ex. CC)
CONCLUSIONS OF LAW
The purposes of the IDEA are “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected;... “20 U.S.C. §§ 1401(d)(l)(A)(B) A school district offers a “free appropriate public education” (FAPE) by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.
Board of Educ. v. Rowley, 458 U.S. 176, 203 (1982) The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.”
Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)
Parents may challenge a proposed IEP and seek reimbursement for their unilateral placement of the child in a private school. However, “Parents who unilaterally change their child's placement... do so at their own financial risk.” Burlington School Committee v. Massachusetts Department Of Education, 471 U.S. 359, 373-4 (1985). In determining whether parents are entitled to reimbursement, the United States Supreme Court has established a two-pronged test: (1) was the IEP proposed by the school district inappropriate; and (2) was the private placement appropriate to the child’s needs. 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148. Additionally, because the authority to grant reimbursement is discretionary, “equitable considerations” relating to the reasonableness of the actions taken by the parents are relevant in fashioning relief. Burlington, 471 U.S. at 374; See also M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 681(2d Cir. 2000); 20 U.S.C. §1412(a)(10)(C)(iii)(III). Therefore, a board of education may be required to reimburse parents for private educational services obtained for a student with a disability if the services offered by the board of education were inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993) “Reimbursement merely requires (a school district) to belatedly pay expenses that it should have paid all along and would have borne” had it offered the student a FAPE. Burlington, 471 U.S. at 370-1; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R.§ 300.148) School districts carry the burden of proof in an impartial hearing, except that parents who seek tuition reimbursement for a unilateral placement have the burden of proof concerning the appropriateness of the private placement. New York Educ. Law § 4404(1)(c).
Prong One The IEP is "the centerpiece of the statute's education delivery system for disabled children." Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). “An IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special education services.” 20 U. S. C. §§1412(a)(4), 1414(d). The IEP should be developed according to the IDEA's procedural requirements and the educational plan should be reasonably calculated to confer educational benefits on the student. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 (2017). A school district must “offer a cogent and responsive explanation” for the IEP team’s decisions regarding program recommendations in order to establish that the IEP it prepared is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. 988 at 1002 (2017).
The first prong of the reimbursement analysis requires a consideration of whether the IEPs for STUDENT for the 2020 – 2021 and 2021 – 2022 school years, dated July 29, 2020; December 11, 2020; April 9, 2021; and June 25, 2021, were developed according to the IDEA's procedural requirements and whether the educational plans were reasonably calculated to confer educational benefits on her in light of her circumstances. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998); Endrew F. v. Douglas County School District, 137 S. Ct. 988 at 1002 (2017).
There is no real issue before me concerning the procedures the District followed in the development of the IEPs in question. The District issued proper and timely Meeting Notices. (Ex. 11-14) The CSE committees were properly constituted with all mandated members and additional members invited by the District and the Mother. The District cannot be faulted that the (REDACTED) staff declined to participate in the June 25, 2021, CSE meeting. STUDENT did not attend any of the CSE meetings, however, her presence is optional under 8 NYCRR § 200.3(a)(x) (“if appropriate, the student”). In the past, STUDENT had only been present for part of the CSE meeting when the Mother had her leave before the meeting ended. (Tr. 1559) Considering the nature of the Mother’s requests and statements at the CSE meetings at issue, STUDENT’s presence may not have been appropriate. The District CSE developed IEPs, and the District issued proper and timely Prior Written Notices as required by statute and regulation. I find that the District followed proper IDEA and New York State procedures. The remaining prong one issue before me is whether these IEP’s provided STUDENT with a substantive FAPE in light of her “unique circumstances.”
STUDENT “Unique Circumstances” STUDENT has average cognitive ability with some academic strengths, but her attention, executive function skills, judgment, and social skills are poor. She is impulsive. The multiple diagnoses of STUDENT include Autism Spectrum Disorder (ASD) without intellectual deficits at level one or two. ASD is a relatively common disability.[18] Individuals with ASD tend to fixate on a particular interest.[19] STUDENT has fixated on the internet, social media, and having a ‘boyfriend’ more than a typically developing teenage girl. This fixation is especially challenging because technology, male peers, and the internet are ubiquitous. STUDENT has been manipulated online, and her family found it especially difficult to supervise her and keep her safe at home during the Covid-19 pandemic.
THE IEP’S
July 29, 2020, IEP In preparation for the July 29, 2020, CSE meeting, the District conducted a psychological evaluation of STUDENT, and obtained a speech therapy evaluation of her. The CSE also reviewed extensive detailed reports from (REDACTED) documenting STUDENT’s progress there. At the meeting, the Mother expressed concern about STUDENT’s use of technology. The CSE added counseling to address her concern, because STUDENT did not receive any counseling at (REDACTED). Additionally, the District provides students with Chromebooks that have filters that limit internet access, logs that show where the student has gone online, and the District offers workshops for parents on safe internet usage at home. This IEP placed STUDENT in an integrated co-teaching program with daily resource room in the District High School. (Ex. 2 at 1) The rationale for this placement was that (REDACTED) works on grade level curriculum but in small classes. A co-taught class with daily resource room would give STUDENT that additional support from a special education teacher. The CSE also added group speech therapy so that STUDENT could work on pragmatic skills, social conversation, reciprocity, and perspective taking with peers which were documented areas of deficit.
I find that the District properly evaluated STUDENT and that the July 29, 2020, IEP addressed the Mother’s concerns, and STUDENT’s needs.
December 11, 2020, IEP
Following the July 29, 2020, CSE meeting, the Mother sent the District a letter notifying them of escalating changes in STUDENT’s behavior at home over the summer, and that STUDENT was “in crisis.” Her letter did not explain the crisis, and this was new information for the CSE. The CSE had no evaluation from a treating psychiatrist or other professional documenting a crisis. All the CSE had was the report from (REDACTED) who did not actually evaluate STUDENT. Even so, (REDACTED) provided diagnoses of STUDENT that were also new to the CSE. The CSE requested a psychiatric evaluation and planned to reconvene to review it. I find that the December 11, 2020, IEP is based on a well-reasoned plan.
April 9, 2021, IEP The CSE reconvened on April 9, 2021, for another virtual requested review because STUDENT would be discharged from (REDACTED) soon. (REDACTED) presented her evaluation which included new information and multiple new diagnoses of STUDENT’s disability that did not match the previous diagnoses provided by (REDACTED). The CSE was still attempting to get a psychiatric evaluation of STUDENT.[20] The CSE developed the April 9, 2021, IEP as an interim IEP in case STUDENT was discharged from (REDACTED) suddenly and returned home. This interim IEP provides ten hours of individual home instruction per week, two individual counseling sessions per week, and two speech/language therapy sessions. This plan is in compliance with New York State regulations for home instruction which require “a minimum of 10 hours per week at the secondary level, preferably two hours daily.” 8 NYCRR § 200.6 (i)(2) Additionally, the Mother could participate in the District workshops for parents on safe internet usage at home and get a Chromebook with internet limitations from the District. Based upon STUDENT’s documented progress at (REDACTED) and her stabilization and progress at (REDACTED), the CSE found a residential placement to be too restrictive for her. The District sent packets of documents out to day programs for her. (Ex. 51) I find that it is a well-reasoned plan to have an interim IEP in place and ready for STUDENT in case (REDACTED) suddenly discharged her and she returned home. The April 9, 2021, IEP resumes direct instruction from a teacher, which STUDENT did not receive during the months that she was at (REDACTED). It also renews her speech therapy which she did not have for months, and it provides counseling. I find that this interim IEP addressed STUDENT’s immediate needs upon discharge from (REDACTED) and the District provided supports for the Mother.
June 25, 2021, IEP The CSE reconvened on June 25, 2021for a virtual annual review to develop an IEP for STUDENT for the 2021 – 2022 school year. The CSE had no new information since (REDACTED) presented her psychological evaluation at the previous CSE meeting. There was no teacher or representative from (REDACTED) to provide the Committee with STUDENT’s present levels of performance and other current school information. The absence of a private school representative on the CSE is not prejudicial. C.T. v. Croton-Harmon Union Free Sch. Dist., 812 F. Supp. 2d 420, (S.D.N.Y. 2011)
At this point in time, the Mother had presented the CSE with varying diagnoses of STUDENT over a short period of seven months. First, (REDACTED) diagnosed STUDENT with:
Autism Spectrum Disorder, Level 2
Attention Deficit Hyperactivity Disorder (secondary to ASD)
Social Pragmatic Communication Disorder
Mixed Expressive Receptive Language Processing Disorder
Mixed Anxiety-Depressive Disorder. (October 22, 2020; Ex. G at 5)
Then, (REDACTED) diagnosed STUDENT with:
Autism Spectrum Disorder, Level 1, without accompanying intellectual impairment;
Unspecified Neurodevelopmental Disorder...;
Anxiety Disorder, Unspecified;
Persistent Depressive Disorder, currently mild;
Specific Learning Disorders in Reading, Writing, and Mathematics.
(February 23, 2021; Ex J at 27)
Finally, (REDACTED) used:
“Autism Spectrum without intellectual deficits, level 2
ADHD, combined type
Learning Disorder in Math, Reading, Writing, by history
Anxiety Disorder, unspecified”
(May 12, 2021; Ex. Q at 1, 5)
Essentially, a diagnosis is a shortcut to describe a disability. Often, there are typical deficits that go along with certain diagnoses. (Tr. 196) While the three sets of diagnoses of STUDENT may appear somewhat similar, they are quite different to the members of the CSE. For example, students with level I ASD are considered mildly impaired and require support, while those with level II ASD are considered moderately impaired and require substantial support. Special education placement and services are determined according to the student’s individual needs rather than according to a medical diagnosis. However, a medical diagnosis with specific symptomology describing how the condition impacts a particular student can help the CSE identify the student's needs, draft appropriate goals, and develop an appropriate IEP.
The Mother alleges that the CSE failed to develop appropriate goals for STUDENT on both the April 9, 2021, IEP and the June 25, 2021, IEP. (Parents' Brief at 24) STUDENT had not received educational services from the District since eighth grade in 2017 - 2018 school year so no District teachers had taught her for years. Furthermore, STUDENT had been at (REDACTED) without any direct instruction from a teacher for months, and the (REDACTED) teachers failed to participate in the June 25, 2021, CSE meeting. Therefore, at both meetings, the CSE relied on the very detailed teacher reports from (REDACTED), the most current teacher reports, and the evaluation scores from (REDACTED) that are copied onto the IEP's.
Even so, the CSE developed goals that addressed STUDENT's known deficits. For example, STUDENT acts impulsively. The IEPs include a social/emotional goal to "identify and practice 2 strategies (slow down and pause, consider possible outcomes of actions)... " (Ex. 4 at 11) There was testimony and documentation that STUDENT interrupts class discussions and social conversations. The IEPs include a speech and language goal to "adhere to conversational rules..." (Ex. 5 at 10) I find the goals on these two IEP's appropriate.
The CSE placed STUDENT in the (REDACTED), with group and individual speech therapy and group and individual counseling. (Ex.5; Tr. 791, 814) The June 25, 2021, IEP also provides Parent Training because the Mother needed support managing STUDENT at home, and ESY summer services in speech and counseling. (Tr. 253-4; Ex. 5 at 1)
The Mother made a number of claims about the (REDACTED) program in her attorney's closing brief. First, she claims that one of the reasons that the (REDACTED) is inappropriate for STUDENT is that it does not offer foreign language and STUDENT is not foreign language exempt on her IEPs. (Parent's Brief at 21; Tr. 807) I find this claim to be disingenuous because STUDENT has not taken a foreign language at either (REDACTED) or at (REDACTED). In addition, the Parent made a claim based on information on the (REDACTED) website a copy of which is not in evidence in this hearing. (Parent's Brief at 22) Therefore, I am not able to address this issue. The Parent claims that the (REDACTED) program does not have appropriate peers for STUDENT as they have different diagnoses; some have had psychiatric hospitalizations; and some have been involved with juvenile justice. (Ibid. at 23) Students in special education are grouped according to their needs rather than their diagnoses:
"Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:
(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.
(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.
(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.
(iv) The management needs of such students may vary, provided those environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction."
8 NYCRR Section 200.6(a)(3)
Students who attend therapeutic day and therapeutic residential programs have a variety of mental health issues and diagnoses. They also have had various previous experiences that may include placement in a RTC or psychiatric hospital, and involvement with police, the courts, or the FBI. I note that those students in residential placements generally have more severe issues and more severe past histories than those in day placements. Approximately 80% of the (REDACTED) students go on to attend college regardless of their diagnosis or past history.
I find that the (REDACTED) program has appropriate peers for [REDACTED].
Transition is relevant in this hearing because the Mother’s amended complaint alleges that the IEP’s for STUDENT have inappropriate post-secondary goals and it refers to “urgency” based upon STUDENT’s current age. (Ex. B at 6) The Mother testified her understanding of "transitional services" for STUDENT: "She's not going to be self-sufficient for a while, so I think transitional services is the support to get her to independence... " (Tr. 1702-3) While independence is a goal, pursuant to the IDEA, "transition services" are broader than that.
"Sec. 300.43 Transition services
(a)Transition services mean a coordinated set of activities for a child with a disability that—
(1) Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) Is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and includes—
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult living objectives; and
(v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation."
34 CFR § 300.42; See also 8 NYCRR § 200.1(fff)
Transition services focus on the student's transition to adult life, including a transition to adult disability services, vocational programs, supported employment, and adult housing options. It may include travel training. The Mother testified "You know, she's taken the permit test like more times than, you know -- She can't drive. She's not going to be able to drive" and "she's meeting me at a specific time but if the directions are really that hard, she won't show up." (Tr. 1703)
"Travel training is a special education service that means providing instruction, as appropriate, to students with significant cognitive disabilities, and any other students with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live; and learn the skills to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community)."
8 NYCRR § 200.1(ggg)
The (REDACTED) transition program is impressive. Students capable of attending college are eased into the experience of navigating a college campus by taking one class on a college campus. Students take vocational assessments first period, and students who will pursue a vocation, are supported. The (REDACTED) helps families register with New York State agencies that offer vocational assessments, job training, job coaches, and employment support; housing options, home health aides, day programs, and funding. STUDENT’s Mother testified that STUDENT is not registered with any of these agencies in New York State or (REDACTED) although STUDENT is now (REDACTED) years old. (Tr. 1704-5) The Mother did not know what these agencies are about. I agree that this is now a matter of some urgency based upon STUDENT’s age, and (REDACTED), despite having a Post-Secondary Coordinator, has not counseled the Mother on the wide range of available transition options for STUDENT whether or not she is ever fully independent. (REDACTED) provided self-serving transition information.
I find that the (REDACTED) program provides outstanding transition services that are especially important for STUDENT’s transition to adult services whether she is going to attend a post-secondary education program or not; whether she is ever fully independent or not. Furthermore, New York State offers a range of high school diplomas, so STUDENT does not necessarily have to pursue a Regents diploma at (REDACTED).
Residential Placement The Mother’s medical insurance company deemed STUDENT’s need for twenty-four-hour supervision and stabilization at (REDACTED) to be a “medical necessity” and covered it as an insured medical expense. However, the IDEA defines “medical services” as “services provided by a licensed physician.” 34 C.F.R. §300.13(b)(4). Therefore, twenty-four-hour supervision of STUDENT is not a medical service under the IDEA as it does not require a licensed physician. Furthermore, medical services under the IDEA "shall be for diagnostic and evaluation purposes only." 20 U.S.C. § 1401(a)(17).
“Medical services mean only evaluative and diagnostic services provided by a licensed physician, or by another appropriately licensed or registered health professional in consultation with, or under the supervision of, a licensed physician, to determine whether a student has a medically related disability which may result in the student's need for special education and related services.”
8 NYCRR § 200.1(ee)
Least Restrictive Environment (LRE)
It is well established that “deciding if a school must fund a residential placement, the court must determine whether the child requires the residential program to receive educational benefit.” Abrahamson v. Hershman, 701 F.2d 223, 227-28 (1st Cir. 1983). School districts are responsible for the costs of a disabled child's placement in a residential program when that placement is "necessary to provide special education and related services." 34 C.F.R. § 300.104.
“The standard for when a school district has to place a child in a residential setting was established by our Circuit in Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 (2d Cir. 1997), which held that the state has to fund a residential program when it is necessary for the child to make "meaningful educational progress." Walczak at 1122.
Where objective evidence shows that a student progressed in a day program, residential placement is not required. M.H. v. Monroe-Woodbury Cent. Sch. Dist., 296 F. App’x 126 (2d Cir. 2008).
"A state must fund a residential program for a disabled child when it is necessary for the child to make meaningful educational progress. Courts focus on “whether the student's conduct outside of the school building and outside the normal hours of the school day is such that it impedes [the student's] ability to derive an academic benefit from a day program.” M.H. v. Monroe–Woodbury Cent. School. Dist., 296 Fed. Appx. 126, 128 (2d Cir. 2008). As the Second Circuit has observed, “While some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements. IDEA'S preference is for disabled children to be educated in the least restrictive environment capable of meeting their needs.” Walczak, 142 F.3d at 132 (2d Cir.1998)."
C.T. ex rel. M.T. v. Croton-Harmon Union Free Sch. Dist., 812 F. Supp. 2d 420 (S.D.N.Y. 2011)
In the matter before me, the question is whether STUDENT needs a residential placement to make meaningful educational progress, including social/emotional progress. STUDENT made educational progress in (REDACTED) during tenth grade even though her Mother testified that STUDENT was becoming emotionally dysregulated at home. Ultimately, whether (REDACTED) is considered a general education school, or a special education school, does not matter. It is a day school. Both the Mother and (REDACTED) admitted that STUDENT made educational progress at (REDACTED), and STUDENT made progress toward her social/emotional goals there although she did not achieve them independently. Furthermore, the reported deterioration in STUDENT’s behavior occurred during the height of the Covid-19 pandemic when New York State was on lockdown, schools were closed, students were isolated in their homes, STUDENT was not in a summer program, and STUDENT had stopped seeing her psychiatrist although she was still taking psychiatric medications.[21]
(REDACTED), (REDACTED), and (REDACTED) all indicated that STUDENT should not live at home, however, none of them even suggested that this was an educational need. To the contrary, they stated that STUDENT needed to be checked during the night so that she would not get onto the internet.
“Without constant supervision, STUDENT will stay up all night in an effort to gain internet access.” (REDACTED), Ex. G at 4)
“These recent events have illustrated that STUDENT is unable to reside in her home....”
(REDACTED), Ex. H)
"It is strongly recommended that STUDENT not return home after completing treatment at (REDACTED) but that she continue on in a therapeutic boarding school.... Such an environment should also have strong supervision, including with electronics.
(REDACTED), Ex. J at 28)
“Q: And isn't it true that (REDACTED) also recommended that STUDENT not go home once leaving (REDACTED), that she felt that would be inappropriate for the family and STUDENT?
A: She felt it would be unsafe for the family and STUDENT, yes.” (Tr. 342)
There are no reports of STUDENT getting up at night after (REDACTED) changed her medications. Furthermore, many families turn off or disable their WIFI at night; some to limit family internet usage and others because they are concerned about radiation exposure.[22] There are bus monitors who can monitor technology use on the way to and from school. Lastly, if a family cannot manage a child with a disability in their own home, that does not necessarily mean that the public school district is responsible to provide a residential school placement. There are other options through other agencies, including the assistance of home health aides, weekend support services, and even group homes in the child’s own community. In March 2020, the New York State Education Department (NYSED) issued a Memo “Placements of Students with Disabilities in Approved Out-of-State Residential Schools” which provides updated policy, procedures, and forms relating to placing students in both in-State and out-of-State residential schools. While this document establishes no legal precedent, it does provide useful instruction to New York State school districts and families.
The CSE must begin by making a determination that a student is “at risk” of a future residential placement. While home and community factors are considered, “Home and community factors alone would not warrant a residential school placement.”
“School, Home, and Community Factors that May Indicate that a Student is at Risk of a Future Residential School Placement In determining whether a student's parent/guardian should be provided information on where to obtain a family assessment by a human service agency, the committee on special education (CSE) must determine if the child is at risk of the need for residential placement at some point in the future. Home and community factors alone would not warrant a residential school placement. However, such factors in combination with school factors may indicate that the student is at risk of a residential school placement. In those instances, it is the CSE's responsibility to provide the family or guardian with a list of community support services that may be available, including the name and address where the parent/guardian can obtain an assessment of their support needs.” (emphasis added)
Therefore, School Factors must also be present to deem a student “at risk” for a future residential CSE placement. While the list of factors is not exhaustive, I find that none of the Community Factors or School Factors listed apply to STUDENT and no similar factors apply to her. The only factors that may apply to STUDENT are Home Factors i.e., how her family deals with her disability at home. Therefore, STUDENT would not qualify for a residential placement by the CSE.
The memo goes on to answers questions, including:
“What factors should a committee on special education (CSE) consider prior to recommending a student for a residential placement? The determination that a residential school placement is the least restrictive environment for a student, thus removing the child from his/her home and community, must come only after a CSE has made the least restrictive environment considerations (www.p12.nysed.gov/specialed/publications/iepguidance/placement.htm) required for all placement recommendations. In accordance with State law and regulations, school districts must also consider the availability of community support services where students and families could access additional support, as well as the supports and services that may be available from other State agency resources. Furthermore, when a student is at risk for a future residential placement, the school district must:
- provide information to the parent on community support services that may be available to the family; and
- with the consent of the parent (or consent of a student 18 years of age or older), invite the appropriate county or State agency to participate in CSE meetings concerning the appropriateness of a residential placement and other programs and placement alternatives."
In the matter before me, the CSE determined that the LRE for STUDENT was a day program in all relevant IEPs, and therefore, she was not “at risk” for a future residential placement by the CSE. However, the Mother's repeated requests for residential placement establish that the Mother was in need of information on community support services that may be available to the family. The June 25, 2021, IEP provides that Parent Training. (Ex. 5 at 1) Classification on the IEP’s
Both of STUDENT’s Parents and (REDACTED) expressed concern about the classification used to describe STUDENT’s disability on her IEP’s and the Mother’s complaint alleges that STUDENT’s disability has been mis-classified. In New York State, there are thirteen disability classifications at 8 NYCRR § 200.1(zz). See also 34 CFR § 300.8. Additionally, the disability must impact a student’s educational performance so that the student “requires special services and programs approved by the department.” 8 NYCRR § 200.1(zz). The three possibly relevant classifications in this matter are: autism, emotional disturbance (emotional disability), and other health impairment. In New York State, these classifications are based on a student’s behavior in school rather than based on a medical diagnosis. However, the term “autism” is confusing as it is both a medical term and a special education term, although they have different meanings. Educationally:
(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational per (REDACTED). Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
While there has been ample evidence and testimony in this hearing that STUDENT’s disability affects her nonverbal communication and social interaction, there is no evidence of stereotyped movements, resistance to environmental change or change in daily routines, or unusual responses to sensory experiences. (REDACTED) testified that girls on the autism spectrum tend to have fewer of those repetitive behaviors and their intense interests tend to be more traditional female interests, such as make up and pop stars. (Tr. 1094) However, the New York State classification regulation does not distinguish girls from boys.
(4) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational per (REDACTED):
(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors.
(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or
(v) a tendency to develop physical symptoms or fears associated with personal or school problems.
There is also sufficient evidence in this hearing that STUDENT has an inability to build or maintain satisfactory interpersonal relationships with peers and she has displayed inappropriate types of behavior or feelings under normal circumstances for a long period of time.[23] Emotional disturbance might well be an appropriate classification for her disability.
(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student's educational performance.
Students who have ADHD often have the OHI classification, and there is evidence and testimony in this hearing that STUDENT has attentional issues. Furthermore, there have been numerous diagnoses of her that could be considered “other health impairment." In selecting an appropriate classification, the CSE considers which one most accurately describes the educational impact of the student’s disability, i.e., “the most prominent one." (Tr. 149) Classification does not drive the level of special education services, although NYSED approved private schools are limited in the classifications they may accept. The CSE did not change the classification of STUDENT’s disability because it could not determine the appropriate classification without input from the missing (REDACTED) staff and a current psychiatric evaluation to work through all the different diagnoses the different psychologists provided to the CSE. I find that the CSE was correct in not reconsidering the classification on STUDENT’s IEP until they had all the missing information. Prong One Conclusion
I find that the District offered STUDENT a FAPE in all the IEPs for the 2020 – 2021 and 2021 – 2022 school years. The District has carried its burden of proof. However, I will address the remaining issues before me. Prong Two
A parent who seeks tuition reimbursement for a unilateral placement has the burden of proof concerning the appropriateness of that placement. New York Educ. Law § 4404(1)(c) “Subject to minor exceptions, the same considerations that apply in determining whether the School District’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir.2006). Those exceptions include selecting a school not approved by the State, or a private school that does not employ certified special education teachers, or one that does not have its own IEP for the student. Carter, 510 U.S. at 13-14. The Second Circuit recognizes:
"that parents seeking an alternative placement may not be subject to the same mainstreaming requirements as a school board. See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) ("[T]he test for the parents' private placement is that it is appropriate, and not that it is perfect."); Cleveland Heights-University Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998) (holding private placement's failure to meet IDEA's mainstreaming requirement does not bar parental reimbursement). Nonetheless, IDEA's requirement that an appropriate education be in the mainstream to the extent possible, see 20 U.S.C. § 1412(5)(B)(1994), remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate... " M.S. ex rel S.S. v. Bd. of Educ. of Yonkers, 231 F.3d 96, 105 (2d Cir.2000).
A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401[29]; New York Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; See also C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
“No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”
Frank G. v. Bd. of Educ., 459 F.3d 356, 364-5 (2d Cir. 2006)
In this case, the hearing record reflects that (REDACTED) is a coeducational therapeutic residential school for students in grades six to twelve and beyond. Students have emotional disabilities, autism, and learning disabilities. Students are monitored continuously. (REDACTED) provides STUDENT with academic instruction, counseling, and social/emotional support and executive function prompting in real time. Teachers are certified in special education or a content area, and (REDACTED) developed a treatment plan for STUDENT that is similar to a (REDACTED) IEP. The school attempts to control the inappropriate use of technology. There are transition classes that introduce students to work and post-secondary education. Additionally, (REDACTED) provides supervised recreational activities afterschool and on weekends. (REDACTED) is not the "least restrictive environment" for STUDENT as she does not need a residential school to make educational progress, both academic and social/emotional progress. However, parents seeking an alternative placement may not be subject to the same LRE mainstreaming requirements as a school district. Therefore, I find that (REDACTED) is an appropriate school for STUDENT. The Mother has carried the burden on prong two. Prong Three
"[E]quitable considerations [relating to the reasonableness of the action taken by the parents]" are relevant in determining whether, and to what extent, parents should be reimbursed. Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006) The authority to grant reimbursement is discretionary and there is "broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable." J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp. 2d 635, 671 (S.D.N.Y. 2011). “[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” A.C. v. Board of Education, 553 F.3d 165, 171 (2d Cir. 2009). In the case before me, the Mother’s testimony in this hearing described STUDENT as having severe emotional dysregulation at home, self-harm cutting herself to the point of repeatedly bleeding, physical aggression toward her Mother, and the involvement of police and the FBI due to her online sexualized behavior. The Mother told the same thing to (REDACTED), (REDACTED), and (REDACTED), and they each documented it in the reports they provided to the District, and they advised the Mother to place STUDENT in a residential school after (REDACTED). However, (REDACTED) was different. (REDACTED) reported that STUDENT “has no history of aggressive or dysregulated behavior or self-injurious behavior.” The Mother could not explain this discrepancy in the record before me. Furthermore, when asked about this discrepancy in the record, the Mother demeanor and speech pattern were very different than in her responses to other questions.[24]
"A: I don't know. I don't know that -- I don't know if they asked me that. She's never been aggressive with anybody other than me. I'm not sure what they asked and what I answered to be honest." (Tr. 1699)
The application to (REDACTED) clarifies this discrepancy. In applying to (REDACTED), the Mother described STUDENT’s condition quite differently than she described it in this hearing.
Application Question Mother’s Response on Application
Self-Injurious Behavior “STUDENT made light marks on her arm a few times and no blood. Not injurious.”
Mother’s Testimony in this Hearing
“She was getting – She was starting to do cutting, self-harm. Well, first it started with, she had a ton of mosquito bites that she would pick and they would bleed and she would pick the scab they would bleed.... but this was all over her arms and legs. I don’t even know if they were mosquito bites... but I think she was just picking and bleeding and then it started to get worse and worse on her legs and arms with the scabs. Then she started to make other like little cuts and make those bleed. I mean, she looked like she'd been through a pricker bush five times in a row, you know, like every day, because they were differing degrees of like cuts and bleeding things going on all over. (Tr. 1588-9)
“I mean she was carving lines and letters into her legs and arms with scissors. (Tr. 1697)
"Q: Okay. And one of the people from (REDACTED) talked about her coming home and cutting herself. Can you tell me about that incident?
A: Yeah. She has done it. They are not deep cuts and they never have been deep like bleeding cuts, but she makes marks on her legs and her arms.
(Tr. 1700)
Sexualized Behavior Mother’s Response on Application
“STUDENT was involved in several sexualized interactions online. – not in person.”
Mother’s Testimony in this Hearing
“She met somebody in person near her house.” (Tr. 1577)
Parent/Child Conflicts Mother’s Response on Application
“ordinary course stuff”
Mother’s Testimony in this Hearing
“She physically came after me, we had physical altercations on several occasions.” (Tr 1695-6)
A: “I would either obtain it or try to obtain it and she would push, shove, scratch, etcetera.
Q: Did she become -- When you say shove, scratch, did she become aggressive with you?
A: Yes. Very.” (Tr. 1697)
Suicide Ideation/Threats Mother’s Response on Application
“No”
Mother’s Testimony in this Hearing
“I was getting up every night like multiple times to check on her. Like, I thought I was gonna find her dead somewhere in my house.” (Tr. 1606-7)
Insurance Letter
“The patient was admitted to this inpatient mental health residential treatment on 10/19/20 due to suicidal ideation, aggression, self-injurious behavior including cutting, poor emotional regulation,...” (Ex. CC at 3)
Based upon the record before me, I must question the Mother's credibility. It is impossible for me to discern which version is true. Did the Mother exaggerate the severity of STUDENT’s behavior in this hearing, and to her medical insurance company, to obtain funding, or did she minimize the severity of STUDENT’s behavior to (REDACTED) to be sure STUDENT would be admitted and stay there, or both?
The Mother often gave very long answers on direct examination, but she generally told a coherent and sequential story. (Tr. at 1533-6, 1566-8, 1573-5, 1578-9, 1637-8, 1641-3, 1643-5, 1655-6) However, she gave evasive responses when I tried to clarify the record:
"Q: So, (REDACTED) was the prescribing doctor from June 9, 2020, the last time (he) saw her, until October 2020 when she went to (REDACTED); is that correct?
A: I think -- Actually, I think the pediatrician also -- The pediatrician wanted the recommendation of a psychiatrist but they also -- like, at some point before (REDACTED) we saw (REDACTED) who I believe is an osteopath." (Tr. 1689)
I find that the Mother was not a credible witness, and equity does not favor her claims. I find that the Parent has not prevailed on prong three.
CONCLUSION
I have found that the District offered STUDENT a FAPE in the 2020 - 2021 and 2021 - 2022 school years with every IEP the CSE developed for her. (REDACTED) is an appropriate school for STUDENT although it is not the LRE as she does not need a residential placement to make both academic and social/emotional progress. Furthermore, (REDACTED) does not provide appropriate transition support to give families reasonable options. Equity does not favor the Mother whose testimony lacked credibility.
ORDER
There is no order. This case is dismissed with prejudice.
Dated: September 7, 2022
Barbara J. Ebenstein
Barbara J. Ebenstein
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 § 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.
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 § 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.
Exhibit GG Proof of Payment
EXHIBITS
Districts Exbibits
Ex. 1 IEP 6/21/2018 14 pages
Ex. 2 IEP 7/29/2020 14
Ex. 3 IEP 12/11/2020 16
Ex. 4 IEP 4/9/2021 18
Ex. 5 IEP 6/25/2021 16
Ex. 6 PWN 6/27/2018 2
Ex. 7 PWN 8/7/2020 2
Ex. 8 PWN 1/15/2021 3
Ex. 9 PWN with Consent 1/13/2021 1
Ex. 10 PWN 6/30/2021 2
Ex. 11 Meeting Notice 7/21/2020 2
Ex. 12 Meeting Notice 12/8/2020 2
Ex. 13 Meeting Notice 3/4/2021 2
Ex. 14 Meeting Notice 4/5/2021 2
Ex. 15 PWN 4/22/2021 4
Ex. 16 Meeting Notice 6/16/2021 2
Ex. 17 Meeting Notice 6/11/2021 2
Ex. 18 Meeting Notice 6/18/2021 2
Ex. 19 Report Card 11/1/2021 1
Ex. 20 Progress - IEP Goals 2017-18 3
Ex. 21 (REDACTED) Evaluation 4/14/2018 18
Ex. 22 Speech/Language Evaluation 7/27/2020 3
Ex. 23 Psychological Evaluation 7/27/2020 6
Ex. 24 (REDACTED) Academic Record 2020-1 2
Ex. 25 (REDACTED) Letter 11/20/2020 5
Ex. 26 Notes 12/9/2020 5
Ex. 27 CELF-5 12/7/2020 2
Ex. 28 ABAS 3 Parent Form 12/7/2020 6
Ex. 29 (REDACTED) Progress Report 9
Ex. 30 (REDACTED) Spring Report 10
Ex. 31 (REDACTED)'s Evaluation 2/23/2021 35
Ex. 32 (REDACTED) Summary 10/19/2020 12
Ex. 33 (REDACTED) Psychiatric Summary 3/15/2021 2
Ex. 34 Treatment Plan 3/15/2021 6
Ex. 35 Correspondance 8/24/2020 5
Ex. 36 Letter to Parent 9/4/2020 2
Ex. 37 Letter from Parent 10/12/2020 1
Ex. 38 Email 10/15/2020 2
Ex. 39 Email 12/10/2020 1
Ex. 40 Email with Authorization 1/27/2021 4
Ex. 41 Email 2/24/2021 4
Ex. 42 Email 3/3/2021 3
Ex. 43 Email re meeting 3/14/2021 2
Ex. 44 Email 3/24/2021 3
Ex. 45 Email 3/25/2021 3
Ex. 46 Email from Parent 4/5/2021 1
Ex. 47 Email 4/12/2021 1
Ex. 48 Email from Parent 4/16/2021 1
Ex. 49 Email from District 4/19/2021 1
Ex. 50 Email from Parent 4/19/2021 2
Ex. 51 Email from District 5/21/2021 2
Ex. 52 Email from Parent 6/16/2021 2
Ex. 53 Email from Parent 6/18/2021 2
Ex. 54 Email from District 6/18/2021 1
Ex. 55 Email from District 6/18/2021 1
Ex. 56 Email from District 6/24/2021 3
Ex. 57 Email from District 6/24/2021 4
Ex. 58 Email from Parent 6/24/2021 1
Ex. 59 Email from district 6/28/2021 1
Ex. 60 (REDACTED) Acceptance Letter 6/28/2021 4 Parent ‘s Exbibits
Ex. A Complaint June 24, 2021 13 pages
Ex. B Amended Complaint July 16, 2021 19
Ex. C IEP Dec. 11, 2020 14
Ex. D IEP April 9, 2021 18
Ex. E Prior Written Notice April 22, 2021 4
Ex. F IEP June 25, 2021 14
Ex. G (REDACTED) Letter Oct. 22, 2020 5
Ex. H (REDACTED) Letter Dec. 9, 2020 1
Ex. I (REDACTED) Letter Jan 21, 2021 1
Ex. J (REDACTED)'s Evaluation Feb. 23, 2021 35
Ex. K Finance Agreement Oct. 20, 2020 1
Ex. L Treatment Plan Nov. 18, 2020 6
Ex. M Progress Summary March 2, 2021 12
Ex. N Psychiatric Summary March 15, 2021 2
Ex. O Transcript April 1, 2021 1
Ex. P Contract - (REDACTED) April 27, 2021 1
Ex. Q Psychiatric - (REDACTED) May 12, 2021 6
Ex. R Information Packet June 25, 2021 39
Ex. S (REDACTED) Letter August. 24, 2020 2
Ex. T Letter to District Oct. 12, 2020 1
Ex. U Letter to District Nov. 20, 2020 2
Ex. V Letter to District April 16, 2021 2
Ex. W Letter to Parent April 19, 2021 2
Ex. X NYSED Programs Sept. 15, 2021 3
Ex. Y. Student Schedule 2
Ex. Z. Report Card Dec. 7, 2021 2
Ex. AA Email 12/14/20 3
Ex. BB Email 5/29/18 4
Ex. CC Insurance Appeal Letter 1/14/2022 4
Ex. DD Goals - (REDACTED) Feb. 2022 4
Ex. EE (REDACTED) Contract 5/6/2021 2
Ex. FF Payments to (REDACTED) to 4/13/2022 2
Ex. GG Proof of Payment 6/15/2022 4
Footnotes
[1] The Mother has sole decision-making authority for STUDENT. (Ex. 35 at 5) She is referred to as (REDACTED) in some documents and (REDACTED) in others. I have simply referred to her as the “Mother” in this final decision.
[2] On March 16, 2022, a scheduled hearing date, the parties appeared, but jointly moved for an adjournment as the witness planned for that date had just released numerous documents that had been subject to a subpoena issued months earlier. I granted their joint motion to adjourn until the next day when both attorneys could review the new documents. (Tr. 1290) This explains why there are fourteen transcripts but there were only thirteen days of testimony.
[3] The Parent’s counsel consented to the presence of the second attorney for the District during this hearing. (Tr. 3-4)
[4] Asperger’s Syndrome was a form of high-functioning autism. In 2013, the American Psychiatric Association issued the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) which eliminated the diagnosis of Asperger’s Syndrome in favor of the term “Autism Spectrum Disorder’ with various levels and descriptors. The term Asperger’s Syndrome is no longer used. (Ex. 30 at 2)
[5] The parties stipulated to the fact that the District funded STUDENT’s attendance at (REDACTED) based upon a stipulation of settlement in a previous impartial hearing. (Tr. 665-7)
[6] The Mother acknowledged that skin picking can be secondary to some stimulant medications used to treat attention deficit hyperactivity disorder. (Tr 1700-1) At this time, STUDENT was on ADHD attentional medication without a psychiatrist following her. (Ex. I)
[7] The incident reported to the gym teacher was in 8th grade when STUDENT was last in the District schools.
[8] Coined by sociologist Robert Merton, The Matthew Effect derives its name from a verse in the New Testament (Matthew 25:29). Essentially ‘the rich get richer, and the poor get poorer,’ (Tr. 1502-3) Students with disabilities progress at a slower rate than their typically developing peers so comparative scores drop despite the fact that the student with a disability is making progress.
[9] (REDACTED) testified that she thought that (REDACTED) was a psychiatrist so the letter from a psychiatrist'
[10] The BRIEF2 is a twelve-item five-minute questionnaire designed to estimate global executive function and determine whether a comprehensive assessment is appropriate.
[11] The ADOS2 is an activity-based assessment so that the subject plays with specific items, and the clinician follows a script to observe and rate the subject’s behavior.
[12] Published by Pearson, the Vineland Adaptive Behavior Scales Third Edition is the most commonly used instrument supporting the diagnosis of intellectual and developmental disabilities. Vineland-3 not only aids in diagnosis, but it also provides valuable information for developing educational plans (IEPs). (Pearson website)
[13] In this hearing, the Mother confused the CSE requested psychiatric evaluation with the psychological evaluation she had (REDACTED) conduct. The CSE was still waiting for a psychiatric evaluation of STUDENT.
[14] Adaptive Life Skills were assessed with the Vineland administered by (REDACTED) and completed by the therapist at (REDACTED).
[15] There is also a separate (REDACTED). (Tr. 779)
[16] ACCES-VR is New York State’s Vocational Rehabilitation agency that provides employment counseling, job training, job coaching, and other work-related supports for adults with disabilities.
[17] Office of Persons with Developmental Disabilities (OPWDD) is New York State’s agency providing housing support, day programs, home health aides, and other services and funding options for individuals with autism spectrum disorder and other developmental disabilities.
[18] “Autism and Developmental Disabilities Monitoring,” a division of the CDC, published a report stating that one in 54 U.S. children has autism. While the number has steadily increased over a period of years, that does not mean more children are developing the disorder; rather that doctors are better able to diagnose it more accurately. https://www.cdc.gov/mmwr/volumes/67/ss/ss6706a1.htm?s_cid=ss6706a1_w
[19] The American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5), page 50, ASD (“Highly restricted, fixated interests that are abnormal in intensity or focus... or perseverative interests.”)
[20] (REDACTED) testified, “A psychiatric evaluation is often confused with a psychological evaluation. A psychiatrist evaluation is typically conducted by a psychiatrist, so a medical doctor, for the purpose of diagnosis and providing medication.” (Tr. 1147) The CSE does not involve itself in medication or other medical treatment.
[21] The New York State lockdown and school closures started in March 2020, and STUDENT last saw a psychiatrist on June 9, 2020. (Ex. I)
[22] Really.
[23] “A long period of time” is usually considered a period of six months or more
[24] See K.R. v. NYCDOE, 107 F.3d 295, 308-9 (SDNY 2015) on credibility of witnesses.