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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
x In the Matter of the Application o
REDACTED. o/b/o their child REDACTED, Impartial Hearing Officer
Petitioners, DECISION AND ORDER
-against- IHRS No. 573723
REDACTED Central School District,
Respondent.
Pursuant to Part 200 of the Regulations of the
Commissioner of Education
______________________________________________x
[REDACTED] JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
[REDACTED]
New York, NY [REDACTED]
[REDACTED]
[ REDACTED]
APPEARANCES (Remotely)
January 24, 2023
Parent
[REDACTED] Attorney
[REDACTED] Father
[REDACTED] Mother
District
[REDACTED] Attorney
[REDACTED] Executive Director, Pupil Personnel Services (PPS)
January 27, 2023
Parent
[REDACTED] Attorney
[REDACTED Father
[REDACTED] Mother
District
[REDACTED] Attorney
[REDACTED] Executive Director, PPS
[REDACTED] English Teacher, [REDACTED]
March 17, 2023
Parent
[REDACTED]. Attorney
[REDACTED] Father
[REDACTED] Mother
District
[REDACTED] Attorney
[REDACTED] Executive Director, PPS
[REDACTED] School Social Worker, High School
[REDACTED] Asst. Director PPS, Secondary Education, Gr. 6-12
March 22, 2023
Parent
[REDACTED] Attorney
[REDACTED] Father
[REDACTED] Mother
District
[REDACTED] Attorney
[REDACTED] Executive Director PPS
On January 24, 2023, January 27, 2023, March 17, 2023 and March 22, 2023, an Impartial Hearing for the [REDACTED]Central School District, [REDACTED], pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED] (“the student”) was conducted by me remotely via teleconference.
PROCEDURAL HISTORY
The case was commenced by Request for Due Process dated June 8, 2022. (Ex. 1) [1] I was appointed as Impartial Hearing Officer on June 9, 2022. The District’s Response to the Request for Due Process is dated August 8, 2022. Evidentiary hearings were held on January 24, 2023, January 27, 2023, March 17, 2023 and March 22, 2023.
Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.
The current compliance date is August 18, 2023. The record closed on July 30, 2023.
POSITIONS OF THE PARTIES
The Parents claim that: the District failed in its child find obligations by not referring the student to the CSE prior to the Parents referral in March 2022; the District failed to evaluate the student in all areas of her disability, alleging that the psychiatric testing was not done in a timely manner and the District failed to obtain a neuropsychological evaluation [2]; the District failed to offer a FAPE during the 2021-2022 school year (“SY”) by maintaining her in a program which exacerbated her difficulties and by failing to timely provide an appropriate IEP. (Exs. 1, II) [3] Parents seek: reimbursement for psychological and psychiatric services that were provided by them in the 2021-2022 SY as compensation for services not provided by the District; compensatory educational services to address academic loss during the 2021-2022 SY (360 hours of tutoring); and District payment of up to $6000 for a neuropsychological evaluation the Parents requested which the District did not provide. (Exs. I, II; T.20-36)
The District claims that: the student was referred by the Parents to the CSE in a timely manner and the district had no legal obligation to make a referral sooner; the CSE process after referral was handled appropriately and resulted in a program recommendation designed to provide the student with a FAPE; the District evaluated the student in all areas of need for classification purposes; the Parents did not properly request additional evaluations to necessitate further assessment or the commencement of a due process hearing; and the District provided the student with sufficient educational, social and emotional services and that compensatory services ae not due. (Ex. I; T37-40)
CASES PRESENTED
Lists of documents admitted into evidence and persons who appeared are included.
The District presented the testimony of: [REDACTED], Executive Director of Pupil Personnel Services (or “the Director”); [REDACTED], English teacher, [ REDACTED] (or “the teacher”); [REDACTED], social worker at [REDACTED] High School (or “the social worker”); [REDACTED], Assistant Director PPS (or “the Asst. Director”).
The Parents presented the testimony of: [REDACTED] the student’s father (“Father”).
STATEMENT OF FACTS
The following is based upon credible testimony and documentary evidence:
The student, a 9th grader in the 2021-2022 SY, was classified as a student with Emotional Disturbance at a CSE review on May 12, 2022. For the 2022-2023 SY she was placed by the CSE at the [REDACTED], a state-approved therapeutic day school. (T.73) That placement is not in dispute in this proceeding.
For the 2019-2020 SY the student had attended [REDACTE]} Middle School (“[REDACTED]”) and was in the 7th grade. (Ex. II) The student’s early history included anxiety-based struggles and she met with a pediatric neurologist at the age of eight. (Ex. 18) At a later date not in the record the student had a psychiatric evaluation which had resulted in a recommendation for medications which the student rejected. (T.794-795; Ex. 6) The student received privately provided therapy in both the 7th and 8th grade from at least different providers. The periods of that therapy are not in the record. Two were identified in the record. [4] The identified 8th grade provider was a [REDACTED] school psychologist, [REDACTED], who had [REDACTED] after the student’s 7th grade year and was subsequently in private practice.
[REDACTED] staff was aware that in the 7th grade the student had on-going school anxiety, panic attacks relating to that, focusing difficulties and difficulty turning in assignments. (Ex. 3; T.721-727) Indeed, early in that school year [REDACTED] had suggested that the student be considered for participation in a school based DBT program being developed to enable students with school issues to work through problems together. This was rejected by Parents on the advice of the private therapist who was concerned it might conflict with the therapy she was providing. (Ex. F-2; T.720-722) School staff, including [REDACTED] the student’s [REDACTED] guidance counselor, had witnessed an extreme incident of panic (discussed below in the Conclusions section) and been routinely informed by Parents of ongoing difficulties. (T.721, 724, 731)
[REDACTED]closed, with all District schools, in March 2020 due to the COVID-19 pandemic. The student’s report card/grade report showed for the quarter prior to closure grades from 95-74 but for Home and Careers for which she received a 64. (Ex. 3) Passing grades only were given for marking periods subsequent to closure. The student, with all others, received her education via remote instruction through the end of that school year. (T.727) No number grades were given for the last two quarters. The student passed all courses and her final grades ranged from 98 to 81. (Ex. 3)
The District offered hybrid instruction for the 2020-2021 SY, the student’s 8th grade. However, the family elected to maintain the student in solely remote instruction throughout the 8th grade. [5] Commencing about September 2020, [REDACTED] commenced private therapy. The record does not indicate the period of provision of those services, but student resistance was noted in October 2020. (Ex. F-13) The student received significantly lower grades in that school year apparently as a result of missing or late assignments but passed all courses except [REDACTED] which she made up during the summer. (Ex. 4; T.734-735) Student anxiety and depression were exacerbated by isolation during the pandemic. (T.728-729)
[REDACTED] told Parents that he believed the [REDACTED} (“[REDACTED]”), an alternative to traditional high school, would be a good fit for the 9th grade and described a smaller group setting, a smaller teacher-student ratio, the availability of extra support and a more community like setting. (T.735-736) Families must apply to [REDACTED] and if admitted may opt out at any point and attend all classes in the larger High School. (T50, 204) The family applied, and the student was accepted in the [REDACTED]. During the application process, student mental health issues were discussed and a consent for access to school records was provided. (T737, 366) Families are told upon application that [REDACTED] is a general education program, not a special education program. (T.209)
[REDACTED] is an [REDACTED] and provides core content classes (English, Science, Math, History) as well as [REDACTED] classes to enable extra help. (T.50, 201, 262) [REDACTED} are staffed by [REDACTED] teachers and enable students to receive skills-based help on a daily basis and may be mandatory for some students. [6] (T.262-267) There are four [REDACTED] subject area teachers who teach all grade levels in their subject areas which facilitates the development of relationships between staff and students as they move from grade to grade. (T.203) Classes other than the four [REDACTED] classes and the [REDACTED]are taken in the high school or, sometimes, in another facility. (T.206) The maximum [REDACTED] class size is 15 although classes are usually having nine to 12 students. (T.204) [REDACTED] staff meet daily as a team to discuss the students. (T.213) The [REDACTED]’s curriculum is the same as in the mainstream regular track but the approach to learning differs. (T.206) Homework is not assigned and there is a focus on projects. (T.272) In the 2021-2022 SY the [REDACTED] had approximately 40 students and there were approximately eight 9th graders. (T.269-270)
Although the [REDACTED] is an alternative program, a District requested review of the [REDACTED] during the 2021-2022 SY by a PNW BOCES Consultant reported significant deviations from the rubric developed by the National Alternative Education Program concerning indicators found in quality alternative education programs (“the Report”). The review was commenced on October 25, 2021 and a draft report dated March 16, 2022 was thereafter issued. (Ex. L) The report included the following observations and conclusions: There was no clinical/PPS staff as part of the referral process for admission and families of students with IEPs and 504 plans were advised to decline that support as a pre-requisite for attendance; No funding had been provided “to adequately address the social/emotional needs of this student population”; School counselors reported frustration with time limitations as well as a lack of collaboration with [REDA staff to effect positive student outcomes; During classroom observations the consultant noted that many students “ignored redirections to engage in learning vs. phones, conversation and sleeping and were left alone”. (Ex. L)[7]
Her observations regarding students’ class behavior were consistent with a January 3, 2022 Functional Behavior Assessment/Behavior Intervention Plan created by a BCBA/LBA for an 11th grade [REDACTD] student which included classroom observations in all of that student’s [REDACTED] subject classes and stated that there were off-task behaviors in each class by all or most students which included cursing, manipulating cell phones, conversations between students unrelated to assignments and ignoring questions. She noted that during that student’s non-[REDATED] classes off-task behaviors were observed at low levels and cursing was observed at zero level. (Ex. J) [8]
This student started the 9th grade very strongly both academically and socially. (Exs. 5, 13; T.737-738) It was noted that “[s]he worked with other students, interacted with peers outside of her grade level, and verbally communicate with her teacher. “(Ex. 13)
However, at least early November the student’s affect abruptly changed, and her academics suffered. (Ex. 26) Although initially not consistent throughout the school day and more apparent in certain subjects, “[t]here was a sudden lack of communication and engagement in class. She wasn’t really responding to any verbal cues at the time and seemed to really want to isolate herself.” (T.212-213)
In response, [REDACTED] teachers conferred in their team meetings and introduced, among other things, modifications in assignments, preferential seating and multimodal instruction. (Ex. 26; T.213-214) Commencing November 2021 [REDACTED] teachers had numerous telephone conversations, meetings and email exchanges with Parents regarding the student’s disengagement in school. (Ex. 26; T.213-214) Parents informed them that some of her emotional issues might be connected with the anniversary of her grandmother’s death and her grandfather’s visit and additional student history was provided including Parents report that the student had a history of strong starts followed by declines. (Exs. 15, 26; T.214-215)
At an [REDACTED] team meeting on January 4, 2022, in which the parents participated, additional information was provided. “[T]he parents shared that she has been diagnosed with anxiety, has previously seen counselors in and out of school, and was brought to various doctors as a young child” resulting in the team’s conclusion that “[t]here was a long history of medical and social/emotional needs….” By that time the student had “completely withdrawn from all [REDACTED] staff members and most students, did not generally speak in class and had a changed appearance, typically looking “disheveled with her hair unbrushed and unwashed.” The potential of a 504 plan, counseling and other ways to address the student’s needs was discussed with Parents. (Ex. 26)
[REDACTED] staff that same day submitted a Student in Need (“SIN”) form to what [REDACTED] referred to as “RtI “(but referred to hereinafter as the Student Support Team pursuant to the specification of the [REDACTED] who was a participant.) Required information as to the interventions that had been attempted prior to the referral was included. [9] (Ex. 26; T.215, 217-222) The Student Support Team, which included all school guidance counselors and social workers, met weekly to review reports received and assign staff to review them and assign staff. (Ex. F-2; T.425-427) [10]
Social worker [REDACTED] was assigned for this student by mid-January. (Ex. 25-2) Information concerning the specific dates of social worker activity with regard to this matter is limited. However, she initially commenced efforts to obtain consent and thereafter, with the student’s guidance counselor, communicated with the student’s outside psychologist, Dr. [REDACTED] eventually learning that the student had not been engaged at all with the therapist and therefore treatment would not be continuing. (Ex. 25-2; T.436)[11] There is nothing in the record indicating that a diagnosis was provided or that any recommendation concerning an evaluation was made by Dr. [REDACTED] in that conversation. In addition to her work at the high school, the social worker was assigned to [REDACTED] two days a week. At some point prior to March 28, 2022, [REDACTED] discussed the student’s attendance and anxiety issues leading her to conclude that the “[t]he history is more than we realized” but she could not recall what he said. [12] (Ex. 25-1; T.522) The social worker communicated frequently with [REDACTED] staff concerning their efforts and the student’s response and attended an [REDACTED] staff meeting. (Ex. F-25; T.428)
The social worker communicated frequently by phone and email with Parents who provided some information about the student’s history although the record does not indicate what information concerning the student’s treatment or diagnostic history, including the period prior to middle school, was provided. (T429-430) In view of the student’s disengagement and unwillingness to communicate and notwithstanding that the student did not display suicidal ideation or self-injurious behaviors, she informed Parents of her opinion that the student required a high level of support and a hospital assessment, which might lead to hospitalization, should be sought and also discussed the CSE referral process. (Exs. 25-2, 25-4, T.461) She also discussed the CSE referral process, there was “back and forth” with Parents concerning their questions about appropriate language and she advised them that what was important was to start the “clock” running. (T.439) Parents informed her of various unsuccessful efforts to obtain a hospital assessment and to identify a psychiatrist after [REDACTED]’s lack of success in engaging the student and she provided Parents with information the student was not sharing with them concerning her activities in school. (T.428-430) On February 10, 2022, the social worker met with the student for the first time. (T.456) The student was guarded, completely quiet, had poor eye contact and was not very engaged in the conversation, using yes or no answers and body movement to communicate. (T.427)
By February 15, 2022, the parents indicated that they intended to make a referral to the CSE, and the social worker again provided information concerning the procedure as well as contact information and thereafter informed Assistant Director [REDACTED], that he should anticipate communication from the parent regarding that and provided him with background information. (Ex. 25-5, T.433) On February 15 she was also informed that a psychiatrist, Dr. [REDACTED], had been identified. (Ex. 25-5)
The Assistant Director had previously had at least one telephone conversation with Parents concerning the referral process. On March 1 he received an email from Parents asking to speak with him further about it. (Ex. 25-8) The Assistant Director immediately replied, and arrangements were made to speak the next day, March 2. (Ex. F-8-9)
By email letter dated March 3, 2022, received March 7, 2022, Parents submitted a referral to the CSE and attached a letter from Dr. [REDACTED] dated January 24, 2022, which had not previously been provided to the District. (Exs. 6,7; T.794) Dr. [REDACTED] stated that she had diagnosed a Major Depressive Disorder, Recurrent episode, Severe, that she had been unable to establish rapport with the student, and that the student had had at a time not specified a “psychiatric evaluation but refused to take medication at that time.” [13] Dr [REDACTED] recommended an “evaluation” to determine whether the student needed a therapeutic program. (Ex. 6)
On March 7, 2022, the date of receipt of the referral, the District sent a consent to evaluate form (“the consent”) to Parents’ (Ex. 8) The District did not receive a response and sent a second request for consent dated March 17, 2022. (Ex. 9) A signed consent, dated March 22, 2022, was received on March 28, 2022. (Ex. 9)
A District requested social history, also executed March 22, 2022, and received on March 28, 2022, noted the negative impact of the death of the student’s grandmother and the negative change when her grandfather stayed with the family was reported as well as that “the student was overwhelmed by COVID and it affected her negatively.” The social history did not include any information concerning prior psychiatric or neurological evaluations or any medications recommendation. (Ex. 10)
On March 28, District staff, including PPS Director [REDACTED] and the social worker, conferred via telephone with Dr. [REDACTED] who informed them that although the student was engaging with her, she was unable to make a diagnosis at that time. (Exs. 25-1, 14-2; T.64) To obtain a fuller understanding of the student and because a therapeutic placement was possible and a psychiatric evaluation would likely be required for admission, on March 30 the Director telephoned Father concerning having a psychiatric evaluation by Dr. [REDACTED], the district’s psychiatrist and the parent indicated consent. On April 1, 2022, the district sent to Parents a prior written notice requesting and received the executed response on April 8, 2022. (Ex. 12; T593-594) The examination with Dr. [REDACTED] was scheduled for May 20, 2022, his earliest available date, and he agreed to fast-track his report [14] (T68) However, the District proceeded with the May 12, 2023 CSE meeting because, at least partially, because the psychiatric evaluation could not be done “within the time frame.” [15] (T.68)
A psychoeducational evaluation was conducted by Dr. [REDACTED] school psychologist, on March 29, April 1 and April 4, 2022. (Ex. 11) Due to student behaviors during testing, the evaluator was unable to complete the full WISC-V cognitive functioning evaluation and therefore auditory short-term and working memory abilities could not be assessed. The student received a standard score of 10 (average range) on the Similarities subtest, a standard score of 6 (low average range) on the Matrix Reasoning subtest and a standard score of 12 (high average range) on the Block Design subtest. (Ex. 11)
In academic testing, the student performed without noted deficits. (Ex. 11) Her overall score was in the average range (Academic Skills, standard score of 10). The Brief Achievement score was in the high average range (standard score of 11). Her reading, writing and math skills were, for the most part, in the average to superior range. (Ex. 11)
Behavior Assessment for Children, Third Edition (BASC-3) rating forms were filled out by a teacher and the student’s mother. The student was found to be in the “At-Risk” level (suggesting a high level of concern) in the mother’s rating and in the “Clinically Significant” level (suggesting a moderate level of concern) in the teacher scale. (Ex. 11) It was noted that her behaviors had intensified over time during the school year. (Ex. 11-5; See also Ex. 18) Dr. [REDACTED] noted that the teacher reported “almost always” refusals to talk, fearfulness, refusals of advice and avoidance of other adolescents and noted that that information as to this had been received from multiple sources. However, she noted that art class teachers reported that she appeared talkative and enjoyed class activities. (Ex. 11-5)
The student was observed in her English class, and it was noted that she sat on the floor behind chairs near a wall saying, in response to a question, that she could write while leaning on the floor. She appeared to sway for a large majority of the lesson. The student did not engage with her teacher or classmates for the lesson and class activities but most of the time looked at her phone and used her headphones. (Ex. 11) [16]
In addition to the foregoing evaluative material, Teacher Reports, dated April 28, 2022-May 2, 2022, were prepared for submission to the CSE. (Ex. 13) The reports concentrated on the student’s inability to attend to lessons while in class and failure to complete work. Academically there was nothing of concern noted other than the student’s lack of work product. It was reported that numerous teacher interventions were attempted but none resulted in the student’s engagement in class.
On April 8, 2022, the same date that the consent for a psychiatric evaluation was provided, Father set an email to the Director requesting a neuropsychological evaluation “in light of possible neurological issues the district staff had identified and the student’s history.” (Ex. I) She responded the same day, via email, that that request should be submitted to the CSE for review and consideration. In this matter, the CSE evaluation had already begun, testing was not completed and would include a psychiatric evaluation (outside of the District’s normal battery), the CSE had not yet determined if the already planned testing was sufficient. and the student would be put through more testing although it was known that she shut down during the psychoeducational evaluation. (Ex. I; T.78-80) Parents did not request a neuropsychological evaluation at any of the three CSE meetings between May 12 and July 28, 2022. (T.79-81) [17]
The CSE convened on May 12, 2022. Based upon the reports received, which were reviewed at the meeting, the student was classified as a student with an Emotional Disturbance. (Ex. 14) The CSE determined that there were no academic needs for the CSE to address based upon academic testing and the student’s performance prior to November 2021. However, the CSE noted that student was at that time withdrawn and apparently unengaged during the school day in class and in the school community but for “her creative subjects like Arts and Music.” The CSE recommended a social and emotional goal and counseling (1:1) as well as modifications and accommodations to address the student’s emotional needs: breaks, flexible deadlines, modifications of assignments, completion of class assignments at home, preferred seating and access to a preferred person during the school day. [18] The implementation date was May 16, 2022, and classes ended about June 6. (T.448-449)
The Parents had informed the CSE that they were seeking a therapeutic program. The CSE recommendation on May 12 was the home public school in view of the pending psychiatric evaluation scheduled for May 20, 2022.
The social worker thereafter commenced attempts to implement the counseling mandate, but the student refused. (T.449)
Dr. [REDACTED]’s psychiatric evaluation was conducted, as scheduled, on Friday, May 20, 2023. He diagnosed: Selective Mutism, Social Anxiety Disorder and Other Specified Trauma-and Stressor-Related Disorder. He reported that the Achenbach child behavioral checklist indicated that the student exhibited: “sudden changes in mood, depressed mood, refusal to talk, repetitive eye movements, chirping sounds, appearing irritable, fearful/anxious, getting lost in her thoughts, remaining secretive /shy, occasional blank stares, sleep difficulties, appearing confused….difficulty with being organized in tasks, avoids tasks which require sustained mental efforts, may not follow through on instruction.” He recommended a “more therapeutically oriented school program which can offer intensive support and further assessment” as well as exploration of pharmacological treatment options in addition to attempts with individual counseling. Although he was informed that the student “experienced long standing ‘sensory’ based issues in regard to sensitivity to certain clothing fabrics but not with food textures and tastes” and that over the years her sensory issues seemed to contribute to anxiety and depression, he did not recommend further evaluation with regard to that. (Ex. 18)
The CSE reconvened on May 31, 2023, to review the psychiatric report and consider program recommendations based upon Dr. [REDACTED]s findings. (Ex. 22) It issued an IEP for the period June 21, 2022-June 23,2022 and specified “None” with regard to the recommended Special Education Program. However, it agreed to recommend an out of district placement for the student. (Ex. 22) Father thereafter signed the consent to send applications to four programs. (Ex. 20)
The student’s 9th grade report shows: Academy English- final exam 90, final average 67 (passed); Academy Global History-final exam 80, final average 56 (failed); Academy Algebra-final exam 63, final average 56 (failed); Academy Science- 0 indicated for quarter grade and final exam, final average 37 (failed). Teacher comments noted the student’s failure to turn in assignments timely or at all but that the student had made up some work at the end of the quarter. (Ex. 5) The comments were consistent with Mr. [REDACTED]’s testimony that he observed improvement at the end of the year. (Citation [REDACTED]) The student received final averages of 91, 100 and 75 in Art, Choir and Healthy Life Styles, respectively. (Ex. 5)
The student was accepted to the [REDACTED] and at a meeting on July 28, 2022, the CSE recommended that school for the 2022-2023 SY. (Ex. 24) The CSE’s recommendation for the 2022-2023 SY is not at issue in this proceeding.
CONCLUSIONS [19]
- • Child Find Claims Parents claim that the District failed in its child find obligations by not referring the student to the CSE prior to the Parents referral in March 2022. The District claims that the student was referred by Parents to the CSE in a timely manner and the district had no legal obligation to make a referral sooner.
The IDEA places an affirmative duty on School districts to have “in effect policies and procedures” to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. 300.111[a][1][i]; Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 245; (2009); see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements extends to "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][7]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]).
Because the Child Find obligation places an affirmative obligation on the district, the IDEA does not require parents to request that the district evaluate their child. (See Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]). “Thus, courts have held that a district’s child find duty is “triggered” when it “has reason to suspect that special education services may be needed to address that disability.” New Paltz Cent. Sch. Dist., 307 F. Supp. 2nd at 400 n.13; see also Murphy v. Town of Wallingford, No. 10-CV-278, 2011 WL 1106234 (D. Conn. Mar. 23, 2011 (“Once a school has reason to suspect a disability, the school must conduct an evaluation of the child within a reasonable time.” (internal quotation marks omitted)” J.S., 826 F. Supp 2d at 660.
With regard to this matter in which the student has not been unilaterally placed, the District has the burden of proof with regard to all matters. SRO 11-053. N.Y. Education Law §4404[1][c].
- • Pre-Academy Child Find Obligations Parents assert that the District had reason to suspect that the student was a student with a disability and that therefore she should have been referred for evaluation with regard to a 9th grade program and her needs appropriately determined and thereafter addressed. To circumvent that obligation, Parents claim, [REDACTED] was recommended to Parents. Parents assert that the [REDACTED] had certain characteristics that a special needs student might have required, and that the very recommendation supports Parents claims.
The District “does not dispute that there were indications that the student had emotional difficulties prior to November of 2021” when she disengaged from her [REDACTED] classes. (Ex. I-11) However, the District claims that her behaviors in the academic setting and any effect on her educational performance during the time leading up to the classification of emotional disturbance were present for an insufficient period of time, particularly in consideration of the pandemic, to require a referral to the CSE and that classification. [20]
Information concerning the student’s academic history prior to 7th grade is not in the record. Although the record indicates one or more relevant private evaluations, no evaluations are in the record and there is virtually no information concerning contents or conclusions. Further, there is no evidence as to whether other evaluations were conducted. Similarly, the record is devoid of information about psychological and/or social emotional services that may have been provided before the 7th grade. Although private psychological services were provided by Parents in the 7th and 8th grades, the record does not include any written or oral reports, diagnoses or the extent of treatment in that period. However, Parents assert that student anxiety and difficulties with regard to school were pervasive through middle school and known to the district and those issues adversely affected her educational performance.
Parents rely on the testimony of Father with regard to the student’s behaviors in middle school and his communications concerning them with district staff as well as student behavior observed by staff. The District has presented the student’s grade reports for the 7th and 8th grades. No other evidence, testimonial or documentary, has been presented concerning the student’s middle school years. Father’s testimony as to his observations and communications has not been contested or rebutted. I therefore consider whether the evidence in the record is sufficient to support party claims.
I find credible Father’s uncontested testimony concerning frequent and ongoing communications with staff, including [REDACTED] the student’s [REDACTED} guidance counselor, and Dr. [REDACTED], a [REDACTED] school psychologist, concerning the student’s difficulties in getting to school and providing assignments timely.
Further, the evidence shows that as early as October 2019, the beginning of the student’s 7th grade year, Dr. [REDACTED] had knowledge of the student’s circumstances sufficient for him to propose to Parents that the student be considered for a DBT based group for students with “school issues” that the district was organizing. That offer was rejected by Parents because the student’s private provider believed it might conflict with work she was doing. However, whether Dr. [REDACTED]’s proposal was based on Parent communications, his own observations or documentary material he reviewed is unknown. So too is whether the student would have ultimately been considered as appropriate for the program.
The record also supports a conclusion that the student had significant mental health issues that manifested in school during the 7th grade of which staff were aware. Father detailed an incident that appears to have continued well over one hour of panic, hysteria and screaming with regard to going to school. Dr. [REDACTED], Mr. [REDACTED] and the [REDACTED] principal all participated in attempts to get the student into the building and to the school’s “decompression room.” Although the student was eventually able to go to her locker accompanied by Dr. [REDACTED], she walked the entire way “holding on to the wall, as almost suctioning herself to it and at times reversing that to her back [so that she] was against the wall and sliding along it the entire way there and back.” Dr. [REDACTED] concluded that she was holding on to something to keep her comfortable. (T.723-726) Parent testimony concerning this incident has not been contested. However, no information as to when in the school year this incident occurred, i.e., whether it was at the beginning of the school year and not thereafter repeated, is in the record.[21]
The evidence also shows that the student had informed her mother that the “clutching the wall” behavior was one of the ways she felt comfortable getting through the school but that she was picked on by other students who noticed it and made fun of her. (T.727) The record does not include any evidence concerning the degree of this behavior and whether it continued throughout the school year. However, there is no District claim of lack of knowledge of this behavior which appears to have been routine.
Father credibly testified concerning ongoing and increasing difficulties in 7th grade in getting the student to school of which district staff was aware. The student’s record as it relates to tardiness, while not determinative, is not inconsistent with that and the district has not contested Parents claim of staff knowledge of that ongoing problem. (Ex. 3)
Parents also claim that the student had increasing difficulty as the school year progressed in turning in work and staying focused and attentive and they assert guidance counselor [REDACTED]’s knowledge with regard to that. (T.727, 721-722) That claim has not been rebutted and I find it credible. I note that the student’s 7th grade Report teachers’ comments specify for various Quarter 2 classes: “inconsistent performance”, “needs reminders to stay on task”, “often…unfocused with classroom assignments” and “missing or late homework”, generally differing from differing from more positive Quarter 1 comments. The math teacher informed Parents of the student’s “significant decline” from Q1 and that she was struggling to complete the classwork even with numerous reminders to stay on task. (Ex. F-4) Nevertheless, as noted by the District, the Grade Report shows for the two marking periods prior to the pandemic shutdown that the student was maintaining a generally good academic record. (Ex. 3)
Remote instruction commenced during Quarter 3. The student received all P (passing) grades for Q3 and 4. I conclude that those were the generally given grades in the new pandemic circumstances as the student’s final grade for the year appears to be an average of Q1 and Q2. For the remainder of the school year, Father reports that the student increasingly struggled academically and social-emotionally and often turned off the camera and did not participate. (T.728) However, teacher comments indicate that at least through Q3 the student was completing remote assignments for most classes. (Ex. 3)
For the student’s 8th grade year hybrid instruction was available. However, the family elected to continue with completely remote instruction for the entire year. (T. 729) On September 16, 2020, Mr. [REDACTED] initiated a discussion with Parents concerning the student’s response to an unidentified instrument that appears to be meant to determine the student’ s state of mind. (Ex. F-7-8) The reason for seeking this student’s response and/or whether this was generally administered to all students is not in the record. The student stated, among other things, that “I always feel sad no matter what. I don’t know why” and “… I am extremely confused and nervous. I don’t know where to go and I can’t keep up.” (Ex. F-7-8) Dr. [REDACTED], then [REDACTED] and in private practice, accepted the student as a patient a few days later. (Ex. F-9; T.729) The record does not indicate how long she remained in treatment with him or if that was communicated to District staff. However, Father testified that the student was anxious and depressed as well as experiencing isolation in the 8th grade. (T728-729) During that year teachers reported that the student was not focusing and not following through and completing assignments. (T730; Ex. F-12, F-15, F-16, F-17) Parent testimony that concerns about the student’s performance and that the student would not pass were discussed with Mr. [REDACTED] has not been contested. (T.731-734) Her grades declined significantly during the 8th grade after a stronger start, ultimately barely passing most courses and failing French. (Ex. 4) She succeeded in passing French after a summer course made available by the district. (T.734-735)
At the end of the school year Parents were contacted by Mr. [REDACTED] and informed about the [REDACED]. They were told that it had smaller classes, more 1:1 teacher time, more support from teachers, extra help if necessary and a community feeling. (T735) Parents applied and the student was accepted. The Report evaluating the [REDACTED] stated that no clinical/PPS staff is part of that process. (Ex L-2) Parents had been informed that it was a general education program, not a special education program.
In support of its failure to refer the student to the CSE, the District relies on the student’s acceptable, although declining, grades in the 7th grade, at least until the pandemic shutdown, and the circumstances of the student’s isolation in 8th grade which both impacted her and limited District staff ability to gauge her emotional status. It notes that academically she did not require special education services and asserts that rather she “seemed to need” a supportive environment to return to a structured school setting on a full-time daily basis. (Ex. I-12) Further, the District asserts that the [REDACTED] was consistent with the United States Office of Special Education and Rehabilitative Service indications that “if a student has received limited instruction or made little academic progress due to educational disruptions related to the COVBID-19 pandemic, the student should not necessarily be referred for an evaluation, and districts should work with families to determine appropriate general education supports and interventions that can meet the student’s needs attributable to limited instruction as a result of the COVID-19 pandemic.” Appeal No. 22-109, citing, “Return to School Roadmap; Child Find under Part B of the Individuals with Disabilities Education Act, “79 IDELR 140 (OSERS 2021).
However, persistent substantial student anxiety with regard to school, which included a severe demonstration of that before the pandemic, not resulting from it, was known to the District. The student had been not physically present in any school for more than a year and there is nothing in the record indicating any basis for a District conclusion that that would not recur in a return when she returned into a high school environment.
Further, neither Mr. [REDACTED] nor any other District staff familiar with the student in middle school testified in this proceeding. There is no basis for a conclusion as to staff opinions with regard to this student’s needs. Nor is there any basis for a conclusion regarding staff expectations with regard to her return to a full-time general education program, including expectations with regard to the [REDACTED]. I note that the [REDACTED] did not provide ongoing clinical support without an IEP and reportedly discouraged students with an IEP from attending. (Ex. L) Moreover, Mr. [REDACTED]’s opinion of what would be appropriate if Parents rejected the [REDACTED] is unknown. The evidence indicates that information about the [REDACTED] was not limited to District staff. I note that Dr. [REDACTED], for example, later asserted some prior knowledge of the [REDACTED] when she expressed concerns about it to Parents. (T.770)
The U.S. Department of Education indicated that a referral for an evaluation should not necessarily be made, not that it should not be provided in appropriate cases.
I conclude that the District had reason to suspect that this student had a disability and has failed to establish that it complied with its child find obligations when it did not refer the student for an evaluation for the 2021-2022 school year.
2) Post [REDACTED] Attendance Child Find Obligations
Parents claim that the District also failed to comply with child find obligations after the student’s change in behavior in about the beginning of November 2021. I do not agree.
Parents have not contested or rebutted District staff testimony, supported by documentary evidence, concerning their activities and knowledge with regard to the student and I find the evidence presented credible.
That evidence shows that although the student’s behavior change was abrupt, it was not consistent throughout the day and in all classes. Teachers timely informed Parents and received information from them including about: family-related matters which might have affected the student at that time, student declines after strong beginnings had occurred previously and confirmed that similar things were being seen at home.
Teachers timely conferred and developed and thereafter tracked a variety of classroom interventions directed to facilitating a return to student engagement. That procedure was consistent with District policy with regard to obtaining clinical support for students in need and I find no basis for a conclusion that that was not reasonable in general and in the particular circumstances here. It is noteworthy that the behaviors did not indicate that the student was in danger.
However, the various classroom interventions proved to be ineffective. Rather, by the December holiday break the student’s disengagement increased rather than ameliorated and she looked disheveled and unwashed, a change in her physical appearance. Further, in a meeting on January 4, 2022, to consider this, staff learned from Parents of a student “long history” of treatment for anxiety and social/emotional difficulties. (Ex. 26) A Student in Need form was created that day to obtain clinical consideration and support. By mid-January, the Student Support team of school social worker and guidance counselors had met and social worker [REDACTED] had been assigned. I conclude that there was not unreasonable delay in the assignment of a social worker to address this matter.
The social worker commenced efforts to talk with the student’s psychologist, very recently retained, who ultimately informed her that treatment of the student would be terminated because the student had not engaged with her. No diagnosis was provided. The social worker had numerous communications with the student’s teachers, including attending an [REDACTED] team meeting, to obtain ongoing information about the student’s behavior and engagement. The social worker had numerous communications with Parents in which; the CSE referral process was discussed; the social worker’s opinion that a prompt thorough hospital assessment, which she informed Parents could result in hospitalization, should be obtained was discussed; and ongoing information concerning the student’s school activities was provided. Parents also received information concerning the CSE process from Mr. [REDACTED]. Parents did not dispute that they had a lot of questions about the process and getting the student referred. (T.58)
By February 15, 2022, Parents had made clear that a Parent referral was going made. Staff had every reason to believe it would be imminent. Indeed, the social worker alerted Mr. [REDACTED] and provided him with relevant information and notified Parents as to his contact information. There was delay thereafter occasioned by the mid-winter break school closing. Delays thereafter with regard to the commencement of testing were occasioned by Parents action/inaction and not caused by District.
I note that the evidence does not indicate District policy/practice in circumstances when a timely referral by parents is not made. However, that is not relevant in this matter.
I conclude that the lack of a District referral for review prior to Parents referral is not a District violation of its child find obligation to initiate a review within a “reasonable” time of having reason to suspect a disability (on or about November 1).
- • FAPE Claims /May 12, 2022 and May 31, 2022 IEPs Parents assert that the student was denied a FAPE for the entirety of the 2021-2022 SY as a consequence of the District’s failure to refer the student to the CSE. Further, Parents claim that the [REDACTED] exacerbated the student’s disability. I note with regard to that claim that the [REDACTED] program received by the student was consistent with Parent reported representations by Mr. [REDACTED] including providing a very small class sizes, high teacher student ration and a community/team approach. Parents have presented no evidence that the Academy atmosphere was detrimental for this student and exacerbated her difficulties. Rather, the decline was consistent with Parent claims concerning the student’s history. While it may have been more abrupt or comprehensive that does not demonstrate programmatic causation. I note the student was returning to a school after about a year and half of remote instruction, that the return was to a high school -a new experience, and that student was an adolescent with the possibility of the stress of changing developmental levels as considered by the social worker.
However, I have found that the District failed in its child find responsibilities. Therefore, it failed to establish that it provided a FAPE for that part of 2021-2022 SY that preceded the May 12, 2022 IEP (“the May 12 IEP”)
The May 12 IEP appropriately classified the student and acknowledged that the necessary program recommendation was pending completion of further evaluation. (Ex. 14) Although it provided accommodations and modification as well as counseling (1x30 minutes each week), I conclude that the May 12 IEP was a form of interim IEP which did not provide a FAPE in the circumstances here. With regard to the District’s attribution of progress shown in the last part of the term to the May 12 IEP, I note that the teacher testified that progress had commenced before that IEP. Further, the modifications and accommodations were substantially similar to those previously provided by [REDACTED] teachers and which had been ineffective when introduced. It is also the case that whatever benefit the student might have received from the recommended counseling in the remaining 3-4 weeks of classes is unknown as the student rejected the social worker’s counseling offer. Although of course entirely speculative in the absence of evidence concerning parent provided psychiatrist treatment, it appears more likely that the student benefited from that treatment. It had been reported to District staff that she was not disengaged with Dr. [REDACTED] who had been seeing her for several months by the time of May 12 IEP, a period when no support service was offered by District. (Ex. K)
With regard to the May 31 IEP, Parents assert untimeliness, insufficient evaluative material and failure to provide an appropriate placement for the balance of the school year. (Exs. 1, II)
With regard to timeliness, it is undisputed that the date of the IEP date exceeded the 60 days from receipt of consent requirement by a few days and therefore a procedural violation has been demonstrated. However, while school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). I conclude in this matter none of the relevant factors support a conclusion that a FAPE was denied as a consequence of the delay.
With regard to the evaluative material considered by the CSE, I conclude that it was sufficient to support the recommendation made. I note that Parents have contested neither the recommendation nor the placement at the [REDACTED] While additional evaluative material nay have provided relevant information, I find no basis for a conclusion that it would have changed the either the determination, based on the evaluative material considered to recommend a nonpublic school for the 2022-2023 SY or the schools which would have been considered.
With regard to an alleged failure to timely implement it I note that the period the IEP was in effect was June 1, 2021- June 23, 2023. Even had the district recommended that the period for which the IEP was in effect would have elapsed prior to the end of the period a district is permitted for the identification of a nonpublic school.
Based upon the foregoing I find no basis for a conclusion that the May 31 IEP failed to provide a FAPE.
C Neuropsychological Evaluation
Parents assert that a Neuropsychological Evaluation (“Neuropsychological”) was required to appropriately determine this student’s need, that it was requested and that it was not provided. They now seek an Independent Neuropsychological.
Parents initial request for the Neuropsychological was made on April 8, 2022 during the course of the student’s initial evaluation and directed to the Director. Parents were promptly instructed to direct that request to the CSE for its consideration. They did not do so prior to or at either of the two subsequent CSE reviews in this matter. (T.808-809) [22] However, the request was again stated in Parent’s Request for Due Process. (Ex. 1) A due process complaint “may serve the function of expressing disagreement to the district.” Appeal No. 19-094 The district did not thereafter provide the evaluation or file a due process complaint without reasonable delay as required by state regulation. 8 NYCRR 205(g)1(iv). The district had ample time in the 30-day resolution period and thereafter to have agreed to the parent’s request or proceed in the manner provided by 8 NYCRR 200.5(g). It did neither. Accordingly, based upon the foregoing, I conclude parent is entitled to the requested evaluation.
Nevertheless, a district due process complaint with regard to the IEE would have been required to be considered for consolidation in this matter and it is likely that consolidation would have been granted. I therefore note my conclusions with regard to the requested IEE. I have found that the CSE had sufficient evaluative material to support the classification of Emotional Disturbance and to support the recommendation made for a therapeutic non-public placement. However, in this matter, Dr. [REDACTED] had been unable to do a full battery of tests. Further, Dr. [REDACTED] was aware of the need for an immediate determination and had committed to facilitating that with a very fast turnaround, indeed providing his recommendation the next business day. I do not question that Dr. [REDACTED] concluded that the information he had was sufficient for diagnoses and a recommendation concerning placement. However, further testing to guide the delivery of the recommended program might result in a delay in CSE consideration. I note that reported sensory issues were mentioned but not further discussed and Dr. [REDACTED] did not testify. I conclude further testing is appropriate.
I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.
Accordingly, based upon the foregoing, District is ordered to fund the requested IEE at a cost up to $6000.
D Reimbursement for Therapeutic Services Provided
Parents seek reimbursement for out-of-pocket cost (after reimbursement from insurance) for therapeutic services provided by Dr. [REDACTED] and Dr. [REDACTED] during the 2021-2022 SY. I have found, as discussed above, that the student was denied a FAPE during that school year. District asserts that even if a denial has been found the parents did not establish entitlement to the relief sought and argues that the student’s failure to attend offered services by the social worker precludes compensatory counseling and further that evidence that the provided services were appropriate or that she made progress due to counseling has not been provided.
With regard to offered counseling services having been rejected by the student, I note that formal counseling services were not offered until about 3 weeks prior to the end of classes after issuance of the May 12 IEP in a meeting which included the Academy guidance counselor to explain the IEP. Apparently, the social worker was unable to engage the student when she met with her at that time and in those circumstances. The only prior meeting in the record was on February 10 when the social worker met the student for the first time and the student did not engage. There is no claim that routine counseling was offered at that time. Rather, the student was informed she could meet with the social worker on an ad hoc basis if she desired to do so. I find no basis for concluding that there was a substantive rejection of counseling by this student.
In this matter, the district offered no services until virtually the end of the school year. Parents were however, informed by the social worker of the student’s acute needs including that they might result in hospitalization. No diagnosis was made or attempted by District staff but rather were sought from Parents providers. The psychiatric evaluation was not conducted until May 20. Dr. [REDACTED] made a reasonable attempt to engage the student and discontinued her efforts after a very few sessions. Dr. [REDACTED] commenced treatment almost immediately afterward and was successful in engaging the student. As discussed above with regard to the IEPs, I have concluded that District asserted student progress in the last part of the school year was more likely a result of Dr.[REDACTED] treatment than from an IEP in effect for only about 3 weeks (due to the early conclusion of classes and focus on testing) and which provided counseling which the student did not utilize and modifications and accommodations substantially the same as those previously provided informally and which had been ineffective. I conclude that the requested relief is appropriate and equitable in the circumstances here.
E. Compensatory Tutoring Services
Parents seek an award of 360 hours of compensatory tutoring services. No evidence whatever regarding the amount or type of tutoring the student should receive has been presented by Parents. No explanation of how the 360 hours request was determined has been made. Accordingly, the requested reward is not warranted. See Appeal No. 17-069 pp. 32-34 (noting that compensatory tutoring services represent a remedy chosen by the parents and parents have some initial burden to articulate their requested relief) [23]
ORDER
- • The District shall fund an independent Neuropsychological Evaluation from an appropriately qualified provider of Parents choice at a cost not to exceed $6000 to be completed no later than one year form the issuance of this order.
- • The District shall reimburse parents (not to exceed $9,658.33) for the net cost (Parents payments minus insurance reimbursement received) of services provided during the 2021-2022 school year by Dr. [REDACTED] and Dr. [REDACTED]. District may require evidence that the Drs. [REDACTED] and [REDACTED] were appropriately credentialed to services to this student.
Dated: August 15, 2023
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing parties' 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 proceedings before a 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 available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
District
1 Request for Due Process, 6/8/22, 2 pgs.
2 District Response to Request for Due Process, 8/8/22, 2pgs.
3 Report Card/Grade Report 2019-2020 School Year, Undated, 2 pgs.
4 Report Card /Grade Report 2020-2021 School Year, Undated, 2 pgs.
5 Report Card/Grade Report 2021-2022 School Year, Undated, 2 pgs.
6 Email referring student with Att. Letter from Dr. [REDACTED], 3/3/22, 2 pgs.
7 Emails regarding referral to CSE, 3/7/23, 1 pg.
8 PWN for Initial Evaluations, 3/7/23, 3 pgs.
9 PWN, 2nd Req. for Initial Evals with Executed Consent, 3/17/22, 4 pgs.
10 Social History, 3/22/22, 2 pgs.
11 Psychoeducational Evaluation, 2/29/22, 7 pgs.
12 PWN with Exec. Consent for Psychiatric Evaluation, 4/1/22, 4 pgs.
13 Teacher Reports for May CSE Meetings, 4/28/22, 13 pgs.
14 IEP- 5/12/22, 5/12/22, 10 pgs.
15 PWN-5/12/22, 5/12/22, 3 pgs.
16 CSE Meeting Notes-5/12/22, 5/12/22, 1 pg.
17 Consent for Initial Services, 5/112/22, 2 pgs.
18 Psychiatric Evaluation-5/20/22, 5/20/22, 3 pgs.
19 PWN-5/31/22, 5/31/22, 2 pgs.
20 Release of Information Form, 5/31/22, 5/31/22, 2 pgs.
21 Letter from District to [REDACTED] School Req. Admission, 6/3/22, 1 pg.
22 IEP-5/31/22, 5/31/22, 9 pgs.
23 CSE Meeting Notes-7/28/22, 7/28/22, 2 pgs.
24 IEP-4/28/22, 7/28/22, 10 pgs.
25 Emails of [REDACTED], Various Dates, 9 pgs.
26 Student in Need (“SIN”) Form 1/4/22, 2 pgs.
Parent
A [REDACTED] Letter re Credit Recovery Program, 7/xx/21, 1 pg.
B Dr. [REDACTED] letter, 1/24/22, 1 pg.
C Father Notes, 4/1/22, 1 pg.
D WITHDRAWN
E [REDACTED] letter, 5/13/22, 1 pg.
F Combine Email Exhibits, various dates, 71 pgs.
F-1 [REDACTED]: [REDACTED] Math Test, 11/7/19
F-2 [REDACTED]: Re: DBT, 11/18/19
F-4 [REDACTED] to [REDACTED]: Re [REDACTED]-Math, 1/29/20
F-5 [REDACTED] to [REDACTED]: re Release, 3/16/20
F-7 [REDACTED]: re [REDACTED], 9/16/20
F-9 [REDACTED] 9/18/20
F-12 [REDACTED]: English, 10/15/20
F-13 [REDACTED]: Session Tomorrow, 10/19/20
F-14 [REDACTED]: Session tomorrow, 10/19/20
F-15 [REDACTED] Test, 3/6/21
F-16 [REDACTED]: English, 5/12/21
F-17 [REDACTED]: French, 5/13/21
F-18 [REDACTED]: [REDACTED]Credit Recovery Check Ins, 7/19/21
F-19 [REDACTED]morning, 11/18/21
F-20 [REDACTED] permission for 11/23, 11/23/21
F-23 [REDACTED] re: Urgent: [REDACTED]o virtual meeting, 1/4/22
F-25 [REDACTED]: [REDACTED]Therapist Meeting, 1/6/22
F-26 [REDACTED]: re: [REDACTED] Therapist Meeting, 1/10/22
F-28 [REDACTED] to undisclosed recipients; [REDACTED] Algebra 1-s2nd QTR, 1/14/22
F-29 [REDACTED] After School Schedule, 1/19/22
F-33 [REDACTED] Re: Possible phone call, 1/20/22
F-35 [REDACTED]-Physical Science, 1/20/22
F-38 [REDACTED] End of Quarter Grades/Plan, 1/127/22
F-41 [REDACTED], 1/28/22
F-43 [REDACTED] Progress 3rd Quarter, 2/9/22
F-48 [REDACTED]: Re: Checking in, 2/16/22
F-51 [REDACTED] Meeting, 3//1/22
F-53 [REDACTED]: Re: PPS Contact Information, 3/1/22
F-54 [REDACTED] Conversation, 3/3/22
F-56 [REDACTED] Re: Release of Info, 3/7/22
F-57 [REDACTED] IEP Assessment Referral, 3/7/22
F-60 [REDACTED] Re: Release of Info, 3/19/22
F-62 [REDACTED]: Re: Time to talk today? 3/18/22
F-63 [REDACTED] to [REDACTED]: Re: Call to discuss [REDACTED] with Dr. [REDACTED], 3/27/22
F-64 [REDACTED] to [REDACTED]: Re: Testing, 3/29/22
F-66 [REDACTED] re: Psychiatric Eval, 4/4/22
F-67 [REDACTED]: Retesting, 4/4/22
F-70 [REDACTED] Algebra 1, 4/27/22
F-71 [REDACTED] Re: Global History Project, 5/11/22
G Billing summary, Undated, 1 pg.
H 504s and IEPs, Various Dates, 175 pgs.
I Email [REDACTED], 4/8/22, 2 pgs.
J FBA/BIP-different student (redacted), 1/3/22, 12 pgs.
K Bills of Drs. [REDACTED] and related Reimb. Cks, Various Dates, 21 pgs,
L Draft Report re [REDACTED], 3/16/22. 8 pgs.
Impartial Hearing Officer
I District Memorandum of Law
II Parents Memorandum of Law
Footnotes
[1] Citations preceded by “T.” refer to the hearing transcript. Citations preceded by “Ex.” refer to exhibits admitted into evidence. Letter designations for Exhibits refer to Parent exhibits. Number designations for Exhibits refer to District exhibits. Italicized designations for Exhibits refer to Impartial Hearing Officer exhibits.
[2] The hearing request asserts failure to provide a neurological evaluation pursuant to parent request but the request was for a neuropsychological evaluation and that issue was addressed without objection during the hearing.
[3] Parent claims of district retaliation for filing a request for special education resulting in a Child Protective Services (“CPS”) investigation for medical neglect was not addressed in Parents closing statement and I conclude it has been abandoned. However, as discussed below, I conclude that claim lacks merit. Further, such Parent claims of district failure to comply with Section 504 of the Rehabilitation Act as may have been asserted in the hearing request are not addressed herein pursuant to Parents agreement but have not been abandoned by Parents. (T32)
[4] An identified private therapist received consent to speak with “[REDACTED]s” in March 2020 (7th grade). (Ex. F-2) There is nothing else in the record concerning [REDACTED}
[5] The Request for Due Process claim that the student’s entire 8th grade was provided virtually has not been contested. The district assertion in its Closing Memorandum that remote instruction for all students ended in April 2020 therefore may be a typographical error or indicate that special arrangements for this student were permitted. (Ex. I-11) Further, documents suggest that the student was doing at least some work remotely in May. (Ex. F- 17)
[6] During the 2021-2022 SY all teachers were licensed in their subject areas, but one also had a special education license. (Ex. L)
[7] The observations in the Report were not contested by the District and PPS Director and Assistant Director disclaimed knowledge with regard to [REDACTED] functioning in relevant areas. (T.603-607)
[8] Although this student was in the 11th grade, the same teachers taught this student’s 9th grade classes. Further, notwithstanding the reported discouragement of accepting IEP or 504 services noted by the BOCES Consultant more than a quarter of the students in the [REDACTED] in the 2021-2022 SY had IEPs or 504 plans indicating classroom related behavioral issues. (Ex. H-11, 43, 52, 57, 63, 79, 90, 99, 109, 141, 167)
[9] [REDACTED] staff described the Student Support Team as a process by which students could be referred for support services but that “[t]ier 1 interventions, meaning classroom interventions are expected to be tracked for a time prior to this point.” (T218, 220)
[10] The student was doing some schoolwork but not enough to succeed. (T.480) For the remainder of Quarter 2, [REDACTED] staff made various efforts to enable the student to provide required work including through the [REDACTED] and after school to enable her to pass her [REDACTED] courses but ultimately, she was failed all those classes. (Exs. 5, 13-13, F-29, 31,38,39,41) The student passed her non-[REDACTED] classes with grades of 65 (Art), 75 (Healthy Life Styles) and 99 (Choir), significant declines in all but Choir. (Ex. 5)
[11] Dr. [REDACTED] s treatment commenced with a diagnostic evaluation with Parents on January 6, 2022 and had concluded on February 10, 2022 after five outpatient psychotherapy sessions and one “consultation”. (Ex. K)
[12] She had initially believed that the change in November was sudden with no apparent antecedents but came to conclude otherwise from her conversation with Mr. [REDACTED] and other information provided. (T.526-527)
[13] The specific date of the evaluation is not in the record, but it occurred at least some years prior to 2022 (T..795)
[14] The evaluation was conducted on Friday and the report was delivered the following Monday. (T.68)
[15] The District has 60 days from receipt of consent to the CSE meeting resulting in an IEP. (T58) In this matter consent was received on March 28, 2022. Accordingly, a meeting was required prior to the date the psychiatric evaluation would be completed.
[16] Dr. [REDACTED] is not a medical doctor. However, during testing she observed what she believed was a seizure and notified Parents. Parents consulted the student’s psychiatrist who disagreed and proffered a different explanation for the observed behavior and Father reported this to Dr. [REDACTED] (Ex. F-67; T.756-757 Nevertheless, at some point Dr. [REDACTED] had made a report of suspected medical neglect which resulted in an extended investigation by Child Protective Services (“CPS) stressful for Parents and the student. (T.758-759) The Request for Due Process claim of District retaliation for making a referral for special education evaluation has apparently been abandoned. However, I note my conclusion that evidence does not support that claim.
[17] It was, however requested in the June 8, 2022 Request for Due Process, filed shortly after the second review. (Ex. 1)
[18] Many of the recommended modifications and accommodations had been previously tried by [REDACTED] staff in their interventions efforts and had been unsuccessful. (T.351-354)
[19] Record references not specified below are stated above.
[20] An emotionally disturbed student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A generally pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems. 34 CFR § 300.7(c)(4); 8 NYCRR 200.1(zz)(4).
[21] Whether the incident should have triggered a referral to the CSE at that time is not before me. (T.33)
[22] “An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other "appropriate assessments or evaluations," as necessary to determine factors contributing to the student's disability (8 NYCRR 200.4[b][1]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). “Appeal No. 22-109
[23] Further, I note my conclusion that the student did receive some educational benefit during the school year and note her grades in the first two months and the fact that she passed two of the three final [REDACTED}exams with grades of 90 and 80 and received 63 on the third. A substantial basis for her academic failures was that required work was not turned in timely or at all. (Exs. 5, 13)