NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 599792 - NYC: 248394
FINDINGS OF FACT AND DECISION
Case Number: 248394
Student’s Name:[1] [REDACTED] (“student”)
Date of Birth: [REDACTED]
School District: NYC # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 05/18/2023
Date(s) of Hearing: 10/19/2023
Actual Record Closed Date: 10/24/2023
Date of Decision: 10/25/2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Leah Martin, Esq.
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/19/2023
For the Student:
[REDACTED] (“Parent Counsel”)
[REDACTED] (“Parent”)
[REDACTED] (“Reviewing Psychologist”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
*also present was an observing IHO, Melvin Dalere (“Observing IHO”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on May 18, 2023. (Ex. A).[2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2021-22 and 2022-23 school years. (Ex. A).
I was appointed to hear the matter on May 19, 2023. On June 26, the parties appeared virtually for a Pre-Hearing Conference (“PHC”). At the PHC, the parties indicated that there had been a partial resolution agreement resolving the request for independent educational evaluations (“IEEs”). (PHC Transcript). The parties also indicated that more time was needed to complete the IEEs before setting a date for hearing. (Id.). The parties jointly requested and were granted an extension for that purpose. (Id.; Order of Extension). On August 15, the parties appeared virtually for a status conference, during which another extension was jointly requested and granted to complete the IEEs. (SC Transcript 8.15.23; Order of Extension2). Another status conference was scheduled for September 13 but had to be cancelled due to a family emergency of the undersigned. On September 28 a final status conference was held, during which another extension was jointly requested and granted for witness availability and a hearing date was set. (SC Transcript 9.28.23; Order of Extension3). During that conference it was clarified that the issues for hearing would be limited to those alleged in the DPC. (SC Transcript 9.28.23).
A virtual due process hearing (“DPH”) was held on October 19, 2023. It was a closed hearing. Parent Counsel and DOE Representative were both present, as was the Parent. At the DPH, the DOE entered no exhibits and called no witnesses. (Tr. 20).[3] Parent entered eight exhibits (A-H) into evidence without objection, including a testimony affidavit of their one witness: “Reviewing Psychologist.” (Tr. 21-22). Reviewing Psychologist gave live cross-examination testimony. (Tr. 34-45). Oral opening remarks were made, and Parent Counsel made closing arguments on the record. (Tr. 26-31, 46-48).[4] The record was closed on October 24, after receipt and review of the hearing transcript.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, NYS Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.
BACKGROUND
The student is [REDACTED] years old and was formerly classified as a student with other health impairment but has been declassified since the fall[5] of 2021. (Ex. A-2). The student had previously lived in [REDACTED] and had an IEP. (Ex. A-2). In the student’s previous IEP from [REDACTED], which was for the 2020-21 school year, the student was recommended for resource room services[6] five times weekly. (Ex. B-5).
Upon moving to New York City, the student was evaluated by the DOE and a review meeting of the committee on special education (“CSE”) was held, at which time the student was found ineligible for special education classification. (Ex. A-2). According to a recent neuropsychological IEE (“Neuropsychological IEE”), the student should be placed in a specialized therapeutic day school with a small class and integrated social-emotional, behavioral, and mental health supports for the extended school year (“ESY”). (Ex. E-19). That IEE also recommends related services of counseling (two 45-60-minute sessions per week individually or in a group of two), OT (one 45-60-minute session per week), and parent counseling and training (“PCAT”)(1x60x1 in the home). (Ex. E-19-20; H-24). Additionally recommended are compensatory counseling (184 hours), OT (80-92[7] hours), and PCAT (92 hours) to make up for a lack of services for the 2021-22 and 2022-23 school years. (Ex. E-20-21; H-25). Parent is requesting that the CSE immediately reconvene to develop an appropriate IEP, considering the program recommendations listed above. (Ex. A-3; Tr. 30). Until a new IEP is developed and implemented, Parent requests that the student receive daily individual counseling outside of school. (Tr. 24-25, 30). Finally, Parent is requesting compensatory education consistent with the recommendations of the Neuropsychological IEE. (Tr. 23, 30).[8]
ISSUES
Parent alleges in the DPC that the DOE failed to offer a FAPE for the 2021-22 and 2022-23 school years based on an improper decision in September 2021[9] to declassify the student. (Ex. A-2-3; Tr. 22-23). Parent alleges that the DOE’s decision was based on insufficiently comprehensive evaluations, due to the failure to conduct an OT evaluation and an evaluation to rule out a diagnosis of autism (which was allegedly suspected by the student’s therapist at the time). (Ex. A-2-3). Furthermore, Parent alleges that the DOE’s decision failed to account for the student’s “deficits in Picture Span, Coding, and Numerical Expressions,” need for OT, and their knowledge of the student’s “mental health diagnosis [which impacted] her ability to attend school.” (Ex. A-2-3). Based on the September 2021 decision to declassify the student, she did not receive special education during the 2021-22 and 2022-23 school years. (Ex. A-2-3; Tr. 22-23).
The DOE argued at the hearing that the district timely conducted the necessary evaluations and determined that the student was not eligible for special education services. (Tr. 26). According to the DOE, there was no denial of a FAPE, and all requested relief should be denied. (Tr. 26).
FINDINGS OF FACT[10]
Upon moving to New York City in September 2021,[11] the DOE conducted an evaluation of the student to determine her eligibility for special education and appropriate educational program. (Ex. A-2). It appears that the evaluation consisted of a psychoeducational evaluation, a social history, and a classroom observation. (Ex. A-2). According to the DPC, the 2021 social history noted that the student had “a mental health diagnosis [which] impacts her ability to attend school.” (Ex. A-2). However, the social history is not in evidence. Generally, a social history is based on an interview with the student’s parent, so it is unclear here what more, if any, specific information the DOE had about the student’s mental health diagnosis or its affects on the student, other than that conclusory statement. There is no indication in the record that mental health records were provided to the district. Nor is there any data in the record regarding the student’s school attendance at the time. The student’s [REDACTED] IEP did not mention any mental health diagnosis which affected the student’s ability to attend school, nor did it note any issues with school refusal. (Ex. B).
The medical report in evidence (“Medical Report”) and Neuropsychological IEE both note that the student started counseling in 2020, but the exact date is unclear. (Ex. C-1; E-3). The Medical Report contains very little information about the student’s initial diagnosis but does mention that the student started cutting her legs “over a year ago” and the report is dated December 6, 2021. (Ex. C-1). It also states that the student has been receiving “individual counseling and ongoing medication management” for approximately a year. (Ex. C-1). The Neuropsychological IEE states that the student “was diagnosed with anxiety and depression in 2020.” (Ex. E-3). There is no indication in the record that any mental health information was given to the student’s school district at that time. Nor is there any indication that Parent asked the [REDACTED] CSE to reconvene to add counseling to the student’s prior IEP. There is no counseling on the [REDACTED] IEP, nor are any social-emotional concerns noted. (Ex. B). There is no more evidence in the record (such as medical records or a therapist letter) regarding the student’s initial mental health diagnosis or treatment.
According to the DPC, the 2021 classroom observation summary noted that the student “was disengaged and sleeping” during the entire observation. (Ex. A-2). However, that classroom observation report is not in evidence. Furthermore, other evidence in the record attributes that statement to a later reevaluation rather than the September 2021 evaluation. The historical information in the Neuropsychological IEE attributes that to a classroom observation dated December 19, 2022.
Accordingly, it is unclear from the record what information was actually contained in the September 2021 classroom observation.
According to the DPC, the 2021 psychoeducational evaluation showed the student to be in the very low range for Picture Scan, which measures attention and the ability to “remember information for a short period of time.” (Ex. A-2). The student’s numerical expressions were rated in the very low range as well. (Ex. A-2). Finally, the student’s coding, which measures how quickly a person can copy down information, was found to be in the low average range. (Ex. A-2). No other deficits are noted in the DPC. The psychoeducational report is not in evidence, nor is there specific information in the record regarding the degree of those three deficits (for instance, whether the student experienced more than 25% delay). Additionally, there is nothing in the record to explain what affect, if any, those scores had on the student’s ability to achieve educational progress in the classroom and what, if any, services or accommodations would have been necessary to compensate for them.
According to the [REDACTED] IEP, the student was below grade level in math computation and problem solving in April of 2020. (Ex. B-2). At that time, the student appears to have been capable of grade-level work in reading and writing, but she was noted to struggle more with comprehension and inferences in science and social studies. (Ex. B-3). The [REDACTED] IEP noted that the student “works well with other students and has good interpersonal relationships.” (Ex. B-3). The student was noted to have no physical needs and no further need for OT. (Ex. B-3). The [REDACTED] IEP recommended the resource room to support the student at her tailored instructional level and learning rate. (Ex. B-4). According to the [REDACTED] IEP, the student did not require an ESY program. (Ex. B-6). The record contains no information about how the student performed under the last [REDACTED] IEP.
Parent alleges in the DPC that an evaluation should have been conducted in 2021 to test for a diagnosis of autism, which was suspected by the student’s therapist. (Ex. A-2). However, the DPC does not allege, and the record contains no evidence, that the DOE knew of the therapist’s suspicions. There are no issues concerning a potential autism diagnosis included in the [REDACTED] IEP. (Ex. B). There appear to have been no concerns regarding autism raised by the 2021 psychoeducational evaluation either. And according to the Neuropsychological IEE, the student has minimal or no autism symptoms.
(Ex. E-11, 18). So, presumably, further testing in 2021 would have reached the same result.
According to the limited evidence in the record, it appears that after the student was declassified in September 2021, the student experienced a severe psychiatric episode and was briefly hospitalized. (Ex. C-1). This appears to have happened some time in late October or early November.[12] (Ex. C-1). It appears that the student’s behavior changed drastically approximately three weeks before her hospitalization. (Ex. C-1). Then, the student had ideations of jumping in front of a train following a fight with Parent, after which she was psychiatrically hospitalized. (Ex. C-1). During her hospitalization, the student was diagnosed with major depressive disorder (“Single Episode, Severe” without psychotic features) and an unspecified anxiety disorder. (Ex. C-1; E-3). Medical Report notes that the student had no prior psychiatric hospitalizations, that the student’s mood was improved by adjusting medication, and that the student denied “psychosis, ED[13], HI, SA, [and] Mania.” (Ex. C-1). The Medical Report notes that the student has “had some attendance issues which is due to ongoing MH struggles.” (Ex. C-1). However, it goes on to say that the student reported “feeling more isolated from her peers since her inpatient stay.” (Ex. C-1). Accordingly, it is unclear whether the reported attendance issues were only since the psychiatric hospitalization or whether they started prior to that. The Medical Report recommended “increased clinical support to better manage current emotional difficulties.” (Ex. C-1). There is no indication in the record that the Medical Report or other documents pertaining to the student’s mental health needs were provided to the school district. The student’s Ambulatory Intensive Outpatient Program as of December 6, 2021, included the following interventions: family education regarding medications, group therapy for the student nine hours per week, and family training and support sessions once per week. (Ex. C-3; E-4). The student’s target discharge date from that treatment program was December 23, 2021. (Ex. C-2-4). However, it is unclear whether or not that target was reached, or what clinical services the student received upon her discharge.
There appears to have been a subsequent re-evaluation of the student in the winter of 2022, and a subsequent CSE meeting on January 5, 2023, in which the student was again found ineligible for special education. (Ex. D-1; E-3; H-1). However, the sufficiency of that re-evaluation and the CSE’s subsequent decision were not challenged in the DPC. Although none of the evaluation/assessment reports from the 2022 testing are in evidence, the Neuropsychological IEE notes that the psychoeducational evaluation from November 2022 showed “overall cognitive functioning” in the average range, with Working Memory and Processing Speed in the low average range. (Ex. E-3). It goes on to state that the student was reported to show “steady growth.” (Ex. E-3). Further noted was that the student’s test scores “revealed noteworthy improvements in several subtests” since the 2021 testing. (Ex. E-3). While numerical operations was noted to still be a relative weakness, the scores had improved since the previous year. (Ex. E-3). The Neuropsychological IEE states that the student was reported to only have 50% class attendance and to be failing her classes in November of 2022, which is attributed to a social history report from November 3, 2022. (Ex. E-3). It was also reported that the student had earned 25 out of the 44 credits necessary for graduation (Ex. E-5), but it is unclear on what that information was based. The 2022 social history referenced in the report is not in evidence, nor are any of the student’s grades or attendance reports. The Neuropsychological IEE reports that the student is attending weekly teletherapy.
(Ex. E-4).
The Neuropsychological IEE is dated September 7, 2023, but the dates of testing are unclear from the record. (Ex. E-1). The first page of the report says that it was performed by three people: a clinical extern (“Neuro Evaluator”), a second person with the acronyms “Ed.D. CCC-SLP BCBA-D” after her name, and a supervising neuropsychologist (“Supervising Neuropsychologist”), whose name is followed by the acronyms “Ph.D., ABPP.” (Ex. E-1). However, the report is only signed by Neuro Evaluator and Supervising Neuropsychologist. (Ex. E-21). The signature page indicates that Neuro Evaluator is a “Clinical Extern” with only a Bachelor of Science degree. (Ex. E-21). There is no other evidence in the record as to her background, experience, or qualifications. According to the “Informed Consent” portion of the report, the entire evaluation was conducted by the clinical extern, who also completed the report “under the supervision of [the Supervising Neuropsychologist].” (Ex. E-5). There is no evidence in the record establishing how involved the level of supervision was. None of the evaluators listed on the report testified at the hearing to provide more information. Although the report states that it was based on “parent interviews, parent and teacher questionnaires, evidence-based measures, record review, and clinical observation” (Ex. E-1), there is no information in the record regarding the amount of time the evaluator(s) spent with the student. The report also indicates that “[e]fforts were made to contact [the student’s] therapist, but the clinician received no reply.” (Ex. E-4).
In the background information portion of the Neuropsychological IEE, it indicates that the student has “difficulty leaving the house.” (Ex. E-2). It also notes that the student’s family has a history of psychiatric problems. (Ex. E-2). Parent reported that the student has been displaying a “tic” that “often happens before it is time for school” but did not happen “at all over the summer.” (Ex. E-2). The student was reported to hear and see things that are not there, and to experience panic attacks. (Ex. E-3).
A number of assessment measures were utilized in the Neuropsychological IEE, which create “a snapshot of [the student’s] current intellectual functioning.” (Ex. E-6-7). Testing showed the student’s full-scale IQ, fluid reasoning, verbal comprehension, receptive language, expressive language, verbal learning and memory, visual-spatial, and working memory skills to be in the average range for her age.
(Ex. E-7-8, 10, 17). Notably, the student’s Picture Scan performance, which was part of the working memory index, showed her to be in the average range (58th percentile)(Ex. E-8), indicating a significant improvement from the results of 2021 testing, as reported in the DPC. While her coding subtest score was still found to be low average (consistent with 2021 testing), the Neuropsychological Report indicates that this score appeared to be “influenced by [the student’s] efforts to get all the items correct” and was believed to not be indicative of functional difficulties. (Ex. E-8). The student’s score for total academic achievement was found to be in the average range compared to her peers, with relatively low performance in writing and combining sentences (low average, 21st percentile) and mathematics [low average for problem solving (16th percentile) and very low for numerical operations (8th percentile)].
(Ex. E-9). For adaptive functioning, although Parent reported moderately low performance (7th percentile), the student’s performance at school appeared to be adequate based on teacher ratings (50th percentile).
(Ex. E-12). Both Parent and the student’s teacher reported issues with social-emotional and behavioral functioning, including clinically significant or at-risk levels of activities of daily living, anxiety, depression, withdrawal, attention problems, somatization, atypicality, adaptability, social skills, leadership, and functional communication. (Ex. E-13-14). However, the severity of those issues varied between teacher and Parent assessments. (Ex. E-13-14). The student herself reported clinically significant levels of school attitude, atypicality, social stress, anxiety, depression, sense of inadequacy, and somatization. (Ex. E-14). The student tested in the 93rd percentile in “endorsement of problematic thoughts, feelings, and behaviors across a broad range of content areas.” (Ex. E-15).
According to the Neuro Evaluator, the student has “significant difficulties with her social emotional functioning; her depressive and anxious symptoms significantly affect her adaptive functioning and academic performance.” (Ex. E-18). The Neuropsychological IEE diagnosed the student with Major Depressive Disorder, Recurrent, Severe, With Psychotic Features, and Generalized Anxiety Disorder. (Ex. E-18). According to the Neuro Evaluator, the student meets the criteria for classification as a student with an emotional disturbance. (Ex. E-18). Neuro Evaluator recommended that the student be placed in a “specialized therapeutic day school that is designed for children with social-emotional and behavioral disabilities” with integrated social and emotional supports on a 12-month basis. (Ex. E-19). A class size of no more than 12 students was recommended. (Ex. E-19). Related services of counseling (twice per week for 45-60 minutes individually or in a group of two), OT (once per week for 45-60 minutes) and PCAT (1x60x1) were also recommended. (Ex. E-20). The OT recommendation is “to address problems with sensory modulation and integration.” (Ex. E-20). The PCAT recommendation is “to help [Parent] understand [the student’s] special needs, manage her communication deficits, and improve her social-emotional and adaptive living skills.” (Ex. E-20). Until the student can be placed in a therapeutic program, the Neuro Evaluator recommended daily counseling (5x60x1) “at school and at home.” (Ex. E-19). There is no evidence in the Neuropsychological IEE regarding the student experiencing regression, either in the background information or in the teacher reports or rating scales.
(Ex. E). Rather, the ESY recommendation is based on “the magnitude of [the student’s] social-emotional difficulties.” (Ex. E-19).
At the end of the Neuropsychological IEE, it states that “[d]ue to the absence of appropriate educational services while attending a DOE program, [the student] requires compensatory education programming that includes:” counseling (two hours per week, 92 hours per year, for two ESYs), OT (one hour per week, 46 hours per year, for two ESYs), and PCAT (one hour per week, 46 hours per year, for two ESYs). (Ex. E-20-21). It is clear from the report that this recommendation is based on the student’s current level of need, and an assumption that she should have received the level of services currently recommended for the last two years.[14] There is no indication at all that this recommendation is based on the student’s historical needs at the time those decisions were made. Nor is there any indication that the recommendation is based on a quantitative analysis of specific deficits caused by services the DOE should have provided or what is now needed to bring the student to a place where she would have otherwise been, but for that deprivation.
Reviewing Psychologist[15] testified that Supervising Neuropsychologist performed the Neuropsychological IEE. (Ex. F-2). However, I do not credit that assertion as it is contradicted by the face of the IEE report. (Ex. E-5). She testified that she concurs with the recommendations[16] of the IEE report and that they are based on the findings within the report. (Ex. F-2-3). She also agreed with the compensatory recommendation in the report. (Ex. F-3). Reviewing Psychologist did not perform the evaluation herself. (Tr. 36). She sat in on the intake and feedback sessions with the Parent, and reviewed records, but did not meet the student, perform any testing, or speak to any teachers. (Tr. 36-40). While she testified that, based on the Medical Report, it appeared that the student’s current functioning today was similar[17] to the time that report was created (December 2021), she also stated that the recent evaluation can only assess the student’s current functioning and cannot tell us prior levels of functioning. (Tr. 37-38, 44). According to her testimony, the only way to assess prior levels of functioning is through “interview and record review.” (Tr. 39). According to Reviewing Psychologist, a public-school program would not be appropriate because “many school psychologists [in the public-school system] had master’s degrees, and were certified school psychologists. They were not licensed psychologists. And they would not be equipped to handle this level of pathology.” (Tr. 42).
An OT IEE was performed on September 2, 2023, by OT Evaluator.[18] (Ex. H-1). The OT IEE was based on records review, clinical observations, interviews with Parent and the student’s school counselor, and a number of assessments. (Ex. H-1-2). It took 90 minutes to complete testing. (Ex. H-3).
The student’s school counselor reported that she struggles with anxiety, becoming easily overwhelmed, and school attendance. (Ex. H-2, 23). According to him, the student is able to visit the school counselor or go to a quiet room when she is feeling overwhelmed, but that she needs encouragement to utilize those supports. (Ex. H-2, 23). According to the school counselor, the student “is on track to graduate in spring 2024.” (Ex. H-2, 23).
Based on standardized assessments, the student’s fine motor precision and manual dexterity are within the average range and her upper limb coordination is above average. (Ex. H-6). Her fine motor integration tested only slightly below the average range. (Ex. H-6). She was found to have below average visual motor integration and fine motor control. (Ex. H-8-9). She showed mixed processing patterns for sensory information, including elevated scores compared to most people in the areas of low registration,[19] sensory sensitivity,[20] and sensation avoiding.[21] (Ex. H-11). This sensory profile is consistent with “significant sensory processing and regulation difficulties that can result in decreased focus and attention, difficulty tolerating various sensations, becoming easily overwhelmed, and difficulty attending to and processing presented information.” (Ex. H-12, 23). The student’s general adaptive composite was found to be in the below average range, with relative strength in communication, community use, functional academics, health and safety, and social skills, and relative weakness in home living, leisure, self-care, and self-direction. (Ex. H-14). The student was found to have “difficulty with some aspects of executive functioning” as well. (Ex. H-17-22, 24).
Based on the results of the OT IEE, OT Evaluator recommended that the student receive 60 minutes of OT per week at home “to address sensory processing, primitive reflex integration, executive functioning and self-care training.” (Ex. H-24). OT Evaluator further recommended a vocational assessment “to support transition planning following graduation.” (Ex. H-25). Additionally recommended was “access to a quiet and calm space for sensory breaks throughout the day.” (Ex. H-24). OT Evaluator did not recommend placement in a special class or non-public school, nor did she recommend an ESY. (See Ex. E). Finally, OT Evaluator recommended 80 hours of compensatory OT (one hour per week for two 40-hour school years) “based on a quantitative and qualitative approach considering what [the student] should have been receiving.” (Ex. H-25). Despite this claim, there is no explanation of why the student had the same needs for the last two years, nor is there any reference to the results of past testing to support that claim. Furthermore, OT Evaluator did not review the results of the 2021 evaluation in creating the OT IEE (Ex. H-1), so she had no information about the student’s functioning at the time of the September 2021 declassification.
LEGAL FRAMEWORK
IDEA/FAPE
For students previously identified as students with a disability, 8 N.Y.C.R.R. §200.4(e)(8)(1) provides that when a student transfers from one district to another within New York State, the new district shall provide the student with services comparable to those in the previously held IEP until such time as their own CSE meeting can be held and appropriate program developed. Where a school district has previously classified a student as one "with a disability," it must evaluate that student prior to declassifying him or her as such. 8 N.Y.C.R.R. §200.4(c)(3). As part of any evaluation or re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to determine the student’s needs. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). Under New York regulations, as part of any evaluation or re-evaluation, the school district must administer tests and other assessment that are needed to identify the student’s developmental needs and whether any program or service modifications are needed to enable the student to meet their annual goals and participate in the general curriculum. 8 N.Y.C.R.R. §200.4(b)(5). “No single measure or assessment is used as the sole criterion … for determining an appropriate educational program for a student,” and the evaluation must be “sufficiently comprehensive to identify all of the student’s special education needs.” Id.
Under the IDEA, school districts must provide "special education and related services" to all qualifying students with disabilities. 20 U.S.C. §1400(d)(1)(A). The IDEA defines a "child with a disability" as a child: “(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title [20 USCS §§ 1400 et seq.] as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.” 20 U.S.C. §1401(3)(A)(emphasis added). A student who needs only accommodations or services, but not special education, does not qualify as a student with a disability under the IDEA.[22] See J.R. v. Bd. of Educ. for the Iroquois Cent.
Sch. Dist, 2020 U.S. Dist. LEXIS 221608 at *43 (W.D.N.Y. 11/24/20) citing Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69 (1st Cir. 2016). Eligibility for special education as a student with a disability is a prerequisite for the development of an IEP. See 20 U.S.C. §1414(d)(1)(A)(i); (2)(A). For classification as a student with an emotional disturbance, courts in the Second Circuit have consistently referred to academic performance in determining whether an emotional disturbance adversely affects a student’s educational performance. S.B. v. Goshen Cent. Sch. Dist., No. 20-CV-09167 (PMH), 2022 U.S. Dist. LEXIS 164057, at *36-37 (S.D.N.Y. 9/12/22) citing Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 297-98 (S.D.N.Y. 2010) (collecting cases and holding that a court “must look to [a student]’s academic performance in order to assess whether she is eligible for special education services under IDEA”); see also A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 311 (E.D.N.Y. 2010) (finding no adverse effect on the education of a student with autism where the student “was performing at average to above average levels in the classroom and was progressing academically”).
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. §300.13. A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The appropriateness of an IEP should be evaluated prospectively from the time that it was created. See R.E. v. N.Y.N. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012); D.N. v. Bd. of Educ., 2015 WL 5822226, *29 (E.D.N.Y. 9/28/15). Information not available to the CSE may not be relied upon to invalidate a substantively appropriate IEP. C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, *13 (S.D.N.Y. 12/23/13); J.M. v N.Y.C. Dep't of Educ., 2013 WL 5951436, *18-*19 (S.D.N.Y. 11/7/13)(holding that a progress report created subsequent to the CSE meeting may not be used to challenge the appropriateness of the IEP). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
The provision of a FAPE could require a 12-month school year if one is needed to prevent substantial regression. 8 N.Y.C.R.R. §200.6(k); 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 N.Y.C.R.R. §200.1[aaa]. In order to constitute “substantial regression,” the student’s educational loss during the summer must be so severe that it requires an inordinate period of re-teaching at the beginning of the next school year (8 weeks or more) to recoup the previous level of skill or knowledge. See VESID, “Extended School Year Programs and Services Questions and Answers,” (2006);[23] "Questions and Answers Extended School Year 2017," Office of Special Educ. (Feb. 2017);[24] Application of a Student with a Disability, Appeal No. 05-114 (a review period of eight weeks or more would likely indicate that substantial aggression has occurred).
Relief
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.
An IHO generally has broad authority to fashion appropriate equitable relief. See Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove v. T.A., 129 S.Ct. 2484 (2009). “Generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need.” Application of a Student with a Disability, Appeal No. 23-028, citing Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998). “Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly.” Id. citing Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 994)(holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed").
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). At an impartial hearing, the party seeking extended school year (“ESY”) services bears the burden of production. See New York State’s 2022 guidance on ESY programs, available at Extended School Year Questions and Answers 2022 (nysed.gov); D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. 9/2/11).
The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme, 790 F.3d at 457; Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. 2017); Application of Student with a Disability, Appeal No. 21-213.
Requested compensatory hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question-is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005) and M.M., supra. Furthermore, a request for compensatory relief may be denied if there is insufficient causal link in the record between any deprivation and the student’s current deficits. See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services). Moreover, unreasonable actions on the part of the student’s parents may make it appropriate to reduce a compensatory award. See Application of a Student with a Disability, Appeal No. 23-093.
ANALYSIS AND CONCLUSIONS OF LAW
Preliminary Considerations
First, it is important to note that because the appropriateness of the CSE’s declassification decision should be evaluated prospectively at the time it was created,[25] based on information known to the CSE at that time, the analysis whether the CSE’s declassification decision denied the student a FAPE will not include consideration of the results of recent IEEs. Although there may be historical information contained in the background sections of those reports that is relevant, the results of the recent testing and any testimony based on those results did not exist at the time of the CSE meeting in questions, nor could that information have been known by the CSE at the time. As Reviewing Psychologist testified at hearing, and the Neuropsychological IEE states, the IEE results simply create a snapshot of how the student is functioning at the time of the test – they cannot tell you anything about how she was functioning two years ago. Thus, neither of the IEEs in evidence or the testimony of Parent’s witness are appropriate to consider when analyzing the CSE’s decision in September of 2021. They will be considered only in the context of any appropriate relief to be granted.
Second, it must be clarified that although the Parent’s request for compensatory services includes 12-month services, there is no evidence in the record that the student experiences significant regression, under its statutory definition, or that the DOE had reason to know at any point during the school years at issue that the student was experiencing significant regression over school breaks. There was no testimony by the student’s teachers that she experiences substantial regression, there are no teacher or progress reports in evidence indicating regression, and the [REDACTED] IEP in evidence did not mention concerns over regression. There is not even agreement among the two IEE Evaluators regarding the student’s need for ESY services. Although the Neuropsychological IEE opines that the student “needs year-round instruction (ESY) to prevent regression during the summer months” “[d]ue to the magnitude of her social-emotional difficulties” (Ex. E-19), that does not appear to be based on any evidence that the student has historically experienced significant regression, within the statutory meaning. Rather, it is based solely on the evaluator’s opinion regarding the magnitude of the student’s current issues. In contrast, the OT Evaluator did not recommend an ESY for the student, nor does her recommendation for compensatory education include services for the 12-month school year. Accordingly, there is not even a consensus among the Parent’s evaluators here as to the student’s need for an ESY, and there is no other evidence of substantial regression in the record. Although the student’s mental and emotional health may have regressed over time, generally, that does not satisfy the statutory definition, which requires a period of 8 or more weeks of review after the summer break to recover previously mastered skills and content. Admittedly, the record is very thin here in all respects. However, the burden is on the party seeking an ESY to demonstrate that the student meets the requirements for that provision, and Parent has failed to do so here.[26] For these reasons, even if the declassification decision were inappropriate here (discussed below), I would not find a failure to provide a FAPE based on the lack of an ESY program.
As a final preliminary issue, I must note that although the student would have been entitled to comparable services to her most recent [REDACTED] IEP under 8 N.Y.C.R.R. §200.4(e)(8)(1), there is no allegation here that such were not provided. Nor is there an allegation that the district’s evaluations and CSE meeting were untimely after the student’s transfer. Accordingly, those issues will not be discussed as potential violations.
FAPE Analysis
Here, the DOE followed the proper procedures in re-evaluating the student prior to declassification in September 2021. However, Parent has challenged the sufficiency of that evaluation and the ultimate appropriateness of the decision that the student was not eligible for an IEP. This is a difficult case, because although the DOE has the burden to disprove the allegations in the DPC regarding the denial of a FAPE, and the DOE declined to present a case, the bulk of the allegations are not supported by the Parent’s own evidence. First, Parent alleges that an OT evaluation should have been conducted as part of the student’s evaluation in September of 2021, based on the fact that the student’s [REDACTED] IEP included OT. However, Parent’s claim is not accurate. The [REDACTED] IEP in evidence did not include OT, and in fact explicitly stated that the student no longer needed OT. So, based on the evidence before me, it does not appear that the CSE had sufficient reason to believe that OT was still an area of need in September of 2021.
Second, Parent alleges that an evaluation should have been conducted to test for a diagnosis of autism, which was suspected by the student’s therapist. However, there are no issues concerning a potential autism diagnosis included in the [REDACTED] IEP, nor is there any evidence in the record that the therapist’s suspicions (or their underlying basis) were communicated to the CSE. Moreover, according to recent testing, the student has minimal or no autism symptoms. On the record before me, I have no basis to conclude that the CSE had reason to believe that autism testing was needed in September of 2021.
Third, there are allegations in the DPC that may or may not be correctly attributed to the September 2021 declassification. Parent asserts that the social history conducted in September 2021 summarized that the student “has a mental health diagnosis [which] impacts her ability to attend school,” but that social history is not in evidence. The DPC further states that the classroom observation in September of 2021 noted the student to be “disengaged and sleeping the entire time.” However, in the Neuropsychological IEE, that same observation is attributed to a classroom observation dated December 19, 2022, rather than September 2021. Since neither of those 2021 reports are in evidence and Parent chose not to testify, the record remains unclear regarding what information was known to the CSE at they time they made the decision in September 2021 to declassify the student. Although the Medical Report and Neuropsychological IEE both reference the student’s start of counseling in the fall of 2020, there is no indication in the record that any mental health information was given to the student’s school district at that time or that Parent requested that the [REDACTED] CSE reconvene to add counseling to the student’s prior IEP. Additionally, the record lacks any evidence (such as medical records or a therapist letter) from the student’s initial diagnosis.
The only other allegations made in the DPC regarding the CSE’s error in declassifying the student in September 2021 is the fact that the DOE’s psychoeducational evaluation revealed her performance for Picture Scan to be in the very low range, her coding to be low average, and her numerical expressions to be in the very low range. However, there is no information in the record regarding the degree of those deficits (for instance, whether the student experienced more than 25% delay). Additionally, there is nothing in the record to explain what effect, if any, those scores had on the student’s ability to achieve educational progress in the classroom and what, if any, services or accommodations would have been necessary. According to recent testing, the student’s Picture Scan results are no longer below average, and the low coding score was not found to indicate a functional delay for the student. The only prior deficit which appears to still be a concern is the student’s struggles with math. But since there are no grades or transcripts in evidence, there is no evidence in the record as to if or how the student’s math struggles translated to her performance in the classroom in 2021.
All that being said, the DOE chose not to present witnesses or evidence, and did not provide a cogent and responsive explanation for the CSE’s decision to declassify the student. Accordingly, I am constrained to find that they failed to meet their burden of proving that the DOE provided a FAPE to the student for the 2021-22 and 2022-23 school years. Although it is very possible that the CSE made a reasonable decision to declassify the student based on the information known to them at the time of the September 2021 meeting, there are remaining questions which the DOE had the burden to resolve. One being how the student was performing academically at the time, which would have been a necessary component to a classification of emotional disturbance. Another unresolved question is whether the student was found to need no services at all, or was found to need only services, which made her ineligible under the IDEA. On the limited facts before me, I cannot find that the DOE met its burden. Although I have considerable concern about the lack of credible allegations in the DPC, the conflicting evidence in the record, and other equitable considerations, those will be discussed more fully in the remedies section below.
Remedies and Equitable Considerations
Given the inconsistencies and outright contradictions in the record, I am troubled by the fact that Parent chose not to testify. She could have filled in many of the gaps here yet decided against it. Furthermore, it seems that a lot of relevant information was left out of the DPC, whether deliberately or not is unknown. Based on the reading of the DPC, it appears that the original declassification decision was made in September of 2021 and then nothing more happened at all until the DPC was filed. Given that impression, it leaves you wondering what happened in the interim and why the Parent would wait almost two years to act while the student continued to devolve. It was only upon reading the histories contained in the IEE reports that I realized that many things happened in the interim that should have been included in the DPC.
There was a psychiatric hospitalization in October and November of 2021, but it is unclear whether and to what extent the DOE was made aware of that significant event. That hospitalization should have triggered a CSE review meeting, had the DOE been aware of it. But the record does not establish that they were.
There appears to have been another round of evaluations and another CSE meeting in the winter of 2022, during which the student’s declassification was continued. But, in the DPC, Parent did not mention or specifically challenge that decision or the evaluations on which it was based. Although I cannot say whether all these omissions were the result of carelessness or were deliberate, I do find that they significantly impact the credibility of the Parent’s case and similarly weigh against them in terms of the equities. Accordingly, the equitable considerations here weigh against a compensatory award.
Furthermore, there is insufficient evidence in the record to link the student’s deficits to any alleged deprivation of a FAPE. Although none of the 2022 evaluations appear in the record, it is noted in the Neuropsychological IEE that testing showed “steady growth” and “noteworthy improvements in several subtests” from the previous year’s testing. Her assessments even improved in math. Moreover, two of the three areas of concern raised by the 2021 psychoeducational evaluation were found in the Neuropsychological IEE to either have improved or not to be indicative of actual function deficits. So, it appears that even without mandated services, the student’s performance was improving.
Additionally, the record shows that even without an IEP, the student did receive some support. She appears to have had regular private therapy since 2020. Also, at some point counseling and a quiet room for breaks were made available to the student during school to help her when she felt overwhelmed. Furthermore, despite a conclusory reference in the Neuropsychological IEE to the student’s lack of credits, it appears from a September 2023 interview with the student’s school counselor that she is currently on track to graduate in the spring of this school year. There are no attendance records, school progress reports, classroom observations, report cards, or transcripts in evidence to show otherwise or to provide a clear picture of the student’s performance in school currently or over the last two years. There is no information in the record from the student’s current therapist. By all accounts in the record, when the student attends school and completes assignments, her performance appears to be average, which the exception of her math performance, which is a relative weakness. But there is no objective evidence in the record of the student’s performance in school or how the tests of her academic potential have translated in terms of her actual performance.
The results of formalized assessments are only one piece to the puzzle. Without the other pieces, it is impossible to get a clear picture of the student’s academic needs. That is especially true here given the doubts discussed below about the Neuropsychological IEE, the fact that neither IEE Evaluator observed the student in school, and the fact that the IEEs themselves seem to contain disparate information based on teacher vs. Parent reports and somewhat contradictory recommendations (discussed more fully below). As an example of disparate information regarding the student’s performance at home vs. school, for adaptive functioning, Parent rated the student in the 7th percentile whereas the teacher rated her in the 50th percentile. That is a huge difference that must be explored and may indicate that the deficits shown in formal testing may not be affecting the student’s school performance as expected.
Moreover, it bears mention that, based on the information in the record, the student’s main issues are mental health related. She is now exhibiting psychotic features, which appear to be caused by underlying mental illness. This is a significant change from what was known to the CSE at the time of the September 2021 declassification. At that time, it is unclear what (if anything) the CSE knew about the student’s mental health diagnoses. But by all accounts in the record, the student’s anxiety and depression at that time were only manifesting very mildly in school, if at all. The only reference in the [REDACTED] IEP that could be construed as even tangentially related to the student’s mental health issues was a brief comment that she had become “reluctant or unwilling” to come to OT sessions (Ex. B-3). However, in the context of that paragraph, stating that the student had maximized her OT potential and “denied hand fatigue for 2 years” (Id.), her reluctance to attend sessions is more reasonably interpreted as a consequence of her belief that the sessions were no longer productive, rather than any mental-health-related school refusal. I do not believe that any amount of supports implemented by the DOE would have prevented the current manifestation of the student’s mental illness, given her family history and psychotic features. Even if the CSE had full knowledge of the student’s condition at the time and implemented appropriate supports in September 2021, there is insufficient evidence in the record to believe that it would have made a significant impact on the student’s current functioning.
In addition, the compensatory recommendation is based almost entirely on the Neuropsychological IEE, which I have given limited evidentiary weight. I am very troubled by the fact that the Neuropsychological IEE was performed by an intern, and neither the evaluator nor the supervising clinician testified at the hearing to explain how the evaluation was performed, how much supervision there was, etc. The Neuro Evaluator only has an undergraduate degree, and we know nothing of her background or experience. It is unclear how much time was spent with the student during the evaluation, and although the student’s main concerns are psychological, no information was obtained from the student’s therapists to inform the findings. Nor was a classroom observation performed to see how the student’s deficits were presenting at school. The Reviewing Psychologist that testified did not perform the evaluation herself but rather gave her opinion of its conclusions based on a review of the report. This conclusion is also of limited value since Parent’s Counsel did not move to have her certified as an expert and she had no personal knowledge of the student. She testified that although she sat in on the intake with the Parent, she did not meet the student, nor did she speak to any of her teachers. Furthermore, her conclusion that the student needs a non-public school program because some public-school counselors only have master’s degrees is highly speculative. There is no reason why counseling with a licensed psychologist could not be specified in an IEP. Furthermore, I find it inconsistent that, according to Reviewing Psychologist, licensed school counselors could not handle the student’s level of pathology but a clinical extern with no advanced certifications or degrees was somehow qualified to analyze and determine all the student’s educational needs. Moreover, the recommendations of the OT Evaluator are largely inconsistent with the recommendations of the Neuropsychological IEE. Although they agree on a similar OT recommendation going forward, they differ in that the OT Evaluator did not recommend a special class or therapeutic day school and did not recommend an ESY. For all these reasons, I find the conclusions of the Neuropsychological IEE and Reviewing Psychologist to be unpersuasive.
Given the nature of the student’s main issues, a psychiatric evaluation and input from the student’s therapist are essential for any program recommendations. Given the lack of recent psychiatric reports in evidence and the absence of testimony from the student’s therapist or parent, the record here is missing a key component necessary to make any valid assessment of the student’s needs. The therapist’s longstanding relationship with the student puts them in a better position to comment on her therapeutic needs than an evaluator who met her for a handful of hours. Furthermore, as noted previously, school observation and information about current school performance are necessary components as well (particularly if the student is to be considered for a classification of emotional disturbance). Even if the IEEs in evidence were a valid measure of the student’s current needs (of which I am doubtful), they tell us nothing about the student’s needs two years ago and what should have been implemented at that time of the 2021 declassification.
As for parent counseling and training, I do not find sufficient need for it in the record. There is very little explanation in evidence for why this is needed, let alone why such a large amount is needed. Furthermore, it appears from the Medical Report that Parent received family training and support as part of the student’s Ambulatory Intensive Outpatient Program in December of 2021. Accordingly, I find this compensatory request to be unsupported by the record.
Finally, given that the student struggles with mental illness and is easily overwhelmed, I would want input from the student’s therapist before ordering a large amount of compensatory hours. Given the large compensatory request here, I fear that they could lead the student to become more overwhelmed and ultimately harm instead of help the situation. For all these reasons, I have significant doubts about the validity of the compensatory recommendations, I find them unsupported by the record, there is insufficient link between the student’s current deficits and the alleged FAPE deprivation, the equities do not support a compensatory remedy, and such an award could overwhelm the student. Thus, I decline to order compensatory relief.
As to the other requested relief, I find that some but not all is appropriate. There is insufficient evidence in the record to order the CSE to classify the student as a student with a disability within the meaning of the IDEA or to include any specific program or services on the student’s IEP. However, there is enough in the record to show that the student’s mental health situation has changed fairly drastically such that it is appropriate for the CSE to reconvene and consider the student’s current needs. Furthermore, the IEEs in evidence provide additional information that should be considered. However, that is not enough, so additional information must be gathered, including a new social history and classroom observation, a psychiatric evaluation, a vocational assessment, and input from the student’s therapist and teachers. Once this information is gathered, the CSE must reconvene and consider all the available evaluative material in determining any appropriate disability classification and program for the student. Until the CSE reconvenes, the student should receive daily counseling in school to help prevent her from becoming overwhelmed. I find no basis for the request that interim counseling be provided in the home.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED THAT the New York City Department of Education shall, within 20 days of the date of this Order, conduct a psychiatric evaluation, vocational assessment, social history update, and classroom observation of the student; it is further
2. ORDERED that the New York City Department of Education’s Committee on Special Education shall then, within ten days of completion of the above-mentioned reports, convene a review meeting to consider the results of all existing evaluations and assessments, including the above results as well as recent IEEs and input from the student, her teachers, her therapist, and Parent. The CSE shall consider classification of the student as a student with a disability and, if so classified, shall develop an IEP with an appropriate program and services in light of the available evaluative materials; and it is further
3. ORDERED that starting immediately until such time as the CSE reconvenes, the student shall receive daily individual counseling in school (5x30x1).
SO ORDERED.
DATED: October 25, 2023
Leah Martin, Esq. (Signed Electronically)_
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
- — - — - — -
PARENT EXHIBITS
A. DPC — 5/18/23 (4 pages)
B. [REDACTED] IEP — 4/8/20 (7 pages)
C. Medical Report — 12/6/21 (4 pages)
D. Ineligibility for Services Notice — 1/10/23 (1 page)
E. Neuropsychological IEE — 9/7/23 (36 pages)
F. Affidavit of Reviewing Psychologist — 10/12/23 (3 pages)
G. Resume of Reviewing Psychologist — Undated (2 pages)
H. OT IEE — 10/12/23 (25 pages)
IHO’S EXHIBITS
- — - — - — -
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.
[4] DOE Representative waived closing argument. (Tr. 46).
[5] The exact date of declassification is unclear from the record. The DPC states only that the student moved to New York City (from [REDACTED]) on September 9, 2021, and an individualized education program (“IEP”) meeting was held in which the student was found ineligible for an IEP. (Ex. A-2). Since September 2021 is the only date mentioned in the DPC, that is the date I will use to reference the initial declassification date.
[6] Although Parent claims that the last [REDACTED] IEP included occupational therapy (“OT”)(Ex. A-2), I do not credit that assertion as it is contradicted by the IEP in evidence (Ex. B-3, 5). According to the IEP, the student had maximized her OT potential and reached her OT goals and no longer needed this service for the 2020-21 school year. (Ex. B-3).
[7] The Neuropsychological IEE recommends 92 hours based on an hour per week for the ESY. (Ex. E-20). However, the OT IEE recommends only 80 hours, based on the same one hour per week, but only for the 40-week school year. (Ex. H-25).
[8] Parent had previously requested transportation to and from these sessions (Ex. A-4) but indicated at the hearing that transportation was no longer necessary (Tr. 23). Accordingly, I will not discuss the issue of transportation further herein. Additionally, IEEs were originally requested in the DPC (Ex. A-3), but that request was settled by partial resolution agreement and was no longer in dispute at the hearing (Tr. 23).
[9] Although Parent’s hearing evidence references subsequent DOE evaluations and subsequent decisions to continue the student’s declassification, those were not raised in the DPC and thus are not properly at issue in this hearing. Accordingly, this decision will focus on the appropriateness of the CSE’s initial declassification decision based on the information known to them at that time.
[10] Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.
[11] It is unclear from the record whether the [REDACTED] IEP in evidence was actually the last [REDACTED] IEP. The projected date of annual review on the IEP in evidence was April 8, 2021. (Ex. B-01). So, unless Parent knew that they were moving well in advance, there should have been a more recent [REDACTED] IEP from the Spring of 2021.
[12] The exact date is unclear since no records from that incident appear in the record and the Parent did not testify. The historical information in the Medical Report gives some conflicting information – first it describes psychiatric admission in “10/2021” but then also describes the last occurrence of cutting happening “prior to going inpatient (approximately 3 weeks ago),” which would have been in mid-November. (Ex. C-1).
[13] The definition of these acronyms is unclear from the record.
[14] Reviewing Psychologist clarified at the hearing that the recommendation “was based on the level of pathology that was found during the course of the evaluation.” (Tr. 35).
[15] She is the clinical director of the agency that performed the Neuropsychological IEE. (Ex. F-1; G-1). She is a Doctor of Psychology, with New York state and national certifications in School Psychology. (Ex. F-1-2; G-1). She is also a New York state licensed psychologist. (Ex. F-1; G-1). She worked for ten years as a school psychologist outside of New York City and is familiar with the types of public-school programs available in New York City through her advocacy and observations. (Ex. F-2; G-1; Tr. 42, 44-45).
[16] Her testimony only addressed the programmatic and compensatory recommendations; she did not specifically endorse the evaluator’s opinion regarding the student meeting the criteria to be classified as a student with emotional disturbance.
[17] Specifically, she testified that in December 2021 the student “was in crisis” and “continues to be in crisis” today, although the “pathology has changed somewhat.” (Tr. 40). In December 2021, the student was engaging in self-harm and experiencing suicidal ideation, but those features do not appear to have continued. (Tr. 40). Now, the student is exhibiting some “psychotic features” that were not seen previously. (Tr. 40). The common thread among those disparate features was stated to be the student’s major depressive disorder. (Tr. 40-41).
[18] She is a licensed occupational therapist (Ex. H-25), but her resume is not in evidence, and she did not testify, so more about her background and qualifications are unknown.
[19] People with this profile “tend to miss or take longer to respond to stimuli that others notice.” (Ex. H-11).
[20] People with this profile can be distractible and respond negatively to intense stimuli. (Ex. H-12).
[21] People with this profile “are overwhelmed or bothered by sensory stimuli.” (Ex. H-12).
[22] But note that they may be eligible under Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a). There are no claims under 504 in the DPC, so eligibility under 504 will not be discussed further herein.
[23] Available at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm.
[24] Available at http://www.p12.nysed.gov/ specialed/applications/ESY/esy-2017/ documents/questions-and-answers-extended-school-year-2017.pdf.
[25] Although no IEP was created at the September 2021 meeting, the reasoning behind prospective analysis of any IEP applies equally to a CSE’s decision that a student is ineligible for an IEP.
[26] See Application of a Student with a Disability, Appeal No. 23-077 (finding that the teacher’s assertion that the student “needed a 12-month program in order to practice and maintain skills” was insufficient to justify an extended school year).