06-077

          Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that petitioner's Committee on Special Education (CSE) erred in its determination that respondent's daughter should be not classified as a student with a disability.  Petitioner also appeals from the decision of the impartial hearing officer which ordered it to reimburse respondent for her daughter's residential tuition costs at the Elan School (Elan), in Poland Springs, Maine, for January 30, 2006 through the end of the 2005-06 school year.  Respondent cross-appeals from the portion of the impartial hearing officer's decision that denied respondent's request for reimbursement for her daughter's residential tuition costs at the John Dewey Academy (Dewey), in Great Barrington, Massachusetts, for the beginning of the 2005-06 school year until the time she began attending Elan.  The appeal must be sustained. The cross-appeal must be dismissed.

            At the time of the impartial hearing, the student was 17 years old and was attending Elan.  The student's eligibility for special education services as a student with an emotional disturbance is in dispute.

            The student attended a general education kindergarten at petitioner's P.S. 199 and thereafter attended private schools chosen by respondent (Dist. Ex. 3 at p. 1; Dist. Ex. 6 at p. 3; Tr. pp. 205-07).  The student initially had difficulty learning to read (Dist. Ex. 3 at p. 1; Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  In addition, she had great difficulty completing homework (Dist. Ex. 3 at p. 1; Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  At age eight, the student developed a pattern of stealing money (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2; Tr. p. 131).  By third grade, school reports characterized the student as "a bright child who does no work" (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  She received tutoring throughout grammar school (Tr. p. 354; see also Dist. Ex. 3 at p. 1; Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  In seventh and eighth grades, the student began to dress inappropriately and to disobey school rules (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2; see also Dist. Ex. 3 at p. 1).

            The student remained at the same private school until high school (Tr. p. 132).  In ninth grade respondent enrolled the student in the Heschel Day School (Heshel) (Dist. Ex. 3 at p. 1; Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2), a private Jewish school (Tr. p. 250).  The student was required to attend summer school following an unsuccessful academic year (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  The student reportedly disliked Heschel and her flaunting of school rules and stealing escalated (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  In tenth grade, the student's behavior further deteriorated (Dist. Ex. 3 at p. 1).  She reportedly developed inappropriate friendships over the internet, started to cut herself, ran away from home, and was failing many of her classes (Dist. Ex. 3 at p. 1; Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2; see also Parent Ex. N at p. 1).  The student was referred to a psychiatrist by her pediatrician for evaluation of depressed mood (Parent Ex. N at p. 1).  The psychiatrist diagnosed the student with a mood disorder and cluster B (histrionic, borderline and antisocial) traits (Parent Ex. N at p. 2).  The psychiatrist noted that the student had a history of affective instability with history of cutting, as well as binging and purging (Parent Ex. N at p. 1).  He also noted that the student was failing school and that there was a shift in her behavior toward more impulsive risk taking behaviors (Parent Ex. N at p. 1).  Near the end of tenth grade, the student was expelled from Heschel for stealing (Dist. Ex. 41 at pp. 5, 6; Parent Ex. O at p. 1; Tr. pp. 134-36; see also Dist. Ex. 3 at p. 1; Parent Ex. P at p. 2).  The student was allowed to finish the school year at home, with the help of tutors, in order to receive credit (Tr. p. 136). 

            In June 2004, the student was hospitalized following a drug overdose (Tr. pp. 109-10, 136-38; see also Dist. Ex. 5 at p. 2; Dist. Ex. 6 at p. 3; Parent Ex. N at p. 2; Parent Ex. P at p. 2).  The overdose was reportedly in response to her expulsion from Heschel (Dist. Ex. 41 at p. 6; Parent Ex. O; Tr. pp. 109-10) and the discovery that the student had been forging her parents' signature on checks (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  Upon discharge from the hospital, the student began Dialectical Behavior Therapy (DBT), which focuses on reducing problem behaviors (Dist. Ex. 6 at p. 3; Dist. Ex. 7 at p. 1; Dist. Ex. 8; Parent Ex. O; Parent Ex. P at p. 2; Tr. pp. 109-10).  The student was also placed on a mood stabilizer (Dist. Ex. 7 at p. 1; see Parent Ex. N at p. 2).  The student identified trichotillomania (chronic hair pulling), cutting, stealing, and purging as issues that she wanted to work on in treatment (Dist. Ex. 8 at p. 1; Parent Ex. O at p. 1).  The student's participation in DBT was described as "poor" and her therapist reported that she violated several of the "cardinal rules" of the group therapy (Parent Ex. O; Dist. Ex. 8; Tr. pp. 110-11).  She denied drug and alcohol abuse, which the therapist later learned was a problem (Dist. Ex. 8 at p. 1; Parent Ex. O at p. 1). 

            In fall 2004, the student transferred to the Beekman School for eleventh grade (Dist. Ex. 6 at p. 4; Parent Ex. P at p. 3).  Due to absenteeism and drug use, she was expelled in December 2004 (Dist. Ex. 6 at p. 4; Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Parent Ex. P at p. 3; Tr. p. 111; see also Tr. pp. 125, 138, 246, 248-49).  The student transferred to the Smith School (Smith), where she was suspended in April 2005 following an incident involving theft (Dist. Ex. 6 at p. 4; Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Parent Ex. P. at p. 3; Tr. pp. 112, 138-39).  The student was reportedly upset at being caught but not remorseful (Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Tr. pp. 112, 461-62).  Smith allowed the student to finish the semester at home with the help of tutors (Tr. pp. 139, 522-24, 538).  The student ran away from home twice, once in December 2004 and again in March 2005 (Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Tr. p. 112).  The student's DBT therapist reported that while she was in therapy, her cutting, purging, and hair pulling behaviors ceased (Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Tr. pp. 113, 123).  However, the student's lying, stealing, school truancy, and drug use continued (Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Tr. pp. 113, 123).  The student's DBT therapist recommended that the student be placed in a therapeutic boarding school (Dist. Ex. 8 at p. 2; Parent Ex. O at p. 2; Tr. pp. 115, 119).

            In May 2005, respondent contacted a child advocate to facilitate the boarding school admissions process (Dist. Ex. 6 at p. 4; Parent Ex. P at p. 3; Tr. pp. 146-47).  The advocate recommended a neuropsychological evaluation to assess the student's level of intellectual ability, academic achievement and her cognitive and emotional function for school placement (Dist. Ex. 6 at p. 4; Parent Ex. P at p. 3; see also Tr. p. 177).  The student discontinued her medication (Tr. pp. 119, 145).  A private neuropsychological evaluation of the student was conducted in May and June 2005 (Dist. Ex. 6; Parent Ex. P).  Administration of the Wechsler Intelligence Scales for Children – Fourth Edition (WISC-IV) yielded a verbal comprehension index score of 100, perceptual reasoning index score of 108, a working memory index score of 86 and a processing speed index score of 88 (Dist. Ex. 6 at p. 4; Parent Ex. P at p. 3).  The student's full scale IQ score was 97 (Parent Ex. P at p. 9).  The evaluating neuropsychologist reported that the student's intellectual ability was in the average range and that her academic achievement in all areas was on or above the expected level (Dist. Ex. 6 at p. 7; Parent Ex. P at p. 6).  The student was noted to have a mild but measurable anomia (Dist. Ex. 6 at p. 7; Parent Ex. P at p. 6; Tr. pp. 162-63).  According to the neuropsychologist, the student was experiencing considerable personal stress stemming from issues of self-esteem and the conflict engendered by her persistent need for nurturing and affection and her impulsive, willful and obstinate behavior (Dist. Ex. 6 at p. 8; Parent Ex. P at p. 7).  She noted that the student's resulting anxiety was often sufficient to compromise her judgment, thereby exacerbating her negative and often self-destructive behavior (Dist. Ex. 6 at p. 8; Parent Ex. P at p. 7).  The neuropsychologist offered the following diagnoses: conduct disorder-childhood onset type-mild; trichotillomania; and expressive language disorder with amnestic features, mild (Dist. Ex. 6 at p. 8; Parent Ex. P at p. 7).  She further noted that the student exhibited borderline personality features (Tr. p. 165; Dist. Ex. 6 at p. 8; Parent Ex. P at p. 7).  The neuropsychologist opined that a therapeutic setting was essential to enable the student to recognize the negative impact of her behavior on her capacity to set and strive to attain appropriate life goals (Dist. Ex. 6 at p. 8; Parent Ex. P at p. 7; Tr. p. 158).  Around this time, the student's parents visited various residential schools (Tr. p. 142).  Of the schools visited, respondent preferred Dewey, but Dewey indicated they could not accept the student until later in the summer (Tr. pp. 142, 181).

            By letter dated June 23, 2005, respondent requested a CSE evaluation, noting that she believed her daughter required special education services (Parent Ex. C; Dist. Ex. 11; Tr. p. 181).  By letter dated July 18, 2005, respondent advised the CSE that the student was scheduled to go on vacation July 28, 2005 and would be available for evaluation prior to that date (Parent Ex. D; Dist. Ex. 12; Tr. pp. 148, 208). 

            The student returned from vacation and began attending Dewey on August 17, 2005 (Tr. p. 62).  By letter dated August 26, 2005, the student's mother advised the CSE chairperson that based on the recommendations of the student's therapists respondent had enrolled the student in Dewey on August 17, 2005 (Parent Ex. E; Tr. pp. 145, 183-84).

            On September 23, 2005, the student's mother provided the CSE with written consent to evaluate the student (Dist. Ex. 4).  On that same date a social history was conducted (Dist. Ex. 3; Tr. pp. 211-12, 319-20).  The parent provided the social worker with a copy of the May/June 2005 neuropsychological evaluation (Tr. pp. 212, 321).

            Over the next few months a series of letters were exchanged between respondent and petitioner.  Petitioner initially requested that the student be made available for an evaluation, specifically that respondent arrange an appointment for the student to be seen at the school office (Parent Ex. F; Dist. Ex. 15).  Respondent indicated that the student was "too fragile" to come home (Parent Ex. G; Dist. Ex. 16; Parent Ex. H; Tr. pp. 149, 220-21, see also Tr. pp. 184-85, 326) but stated that respondent would provide petitioner with reports from the student's psychiatrist and teachers (Parent Ex. G; Dist. Ex. 14).  Subsequent letters highlighted petitioner's attempts to obtain the reports promised by respondent (Dist. Exs. 18, 21; Parent Exs. F, I; Tr. pp. 335-41), as well as respondent's attempts to have a CSE meeting scheduled (Dist. Exs. 16, 17; Parent Ex. H; Dist. Ex. 19; Tr. pp. 223-27, 340).

            While attending Dewey, the student continued to engage in stealing and frequently lied about her behavior (Tr. pp. 44-45).  As of November 2005, the student had earned the following grades at Dewey:  B in Novel; D in U.S. History; D in Pre-Calculus; C in Chemistry; B in Spanish; and an A in Studio Art (Dist. Ex. 10).

            By letter dated December 6, 2005 respondent, through her attorney, requested an impartial hearing (Dist. Ex. 1).  The letter indicated that despite several requests from respondent no CSE meeting had been scheduled for the student (Dist. Ex. 1 at p. 2).  The letter further indicated that because respondent had been unable to obtain CSE help in locating an appropriate program for the student respondent had no choice but to keep the student at Dewey (Dist. Ex. 1 at p. 3).  Respondent requested that the impartial hearing officer find that the CSE failed to meet in order to offer an appropriate program/placement for the student for the 2005-06 school year and that respondent was entitled to costs and fees (Dist. Ex. 1 at p. 3).  Respondent requested that the impartial hearing officer order the CSE to convene and develop an individualized education program (IEP) for the student immediately (Dist. Ex. 1 at p. 3).

            In a letter to the student's parents dated December 12, 2005, the regional CSE chairperson stated that because the parents had chosen not to cooperate with the CSE the child's case would be closed (Dist. Ex. 22, Parent Ex. J; Tr. pp. 229-30, 343-44).  The chairperson noted that the CSE had twice requested that the parents arrange for the student to return to the district for evaluation and further noted that the CSE had requested documentation regarding the student that the parents had in their possession (Dist. Ex. 22; Parent Ex. J). In a response dated December 27, 2005, the student's mother indicated that she had sent the requested reports to district personnel on three occasions and that she was resending them and again requesting a meeting (Dist. Ex. 23; Parent Ex. K; Tr. pp. 188-89, 228-29).

            In December 2005, the student chose to leave Dewey after being confronted by other students regarding her lying and breaking school rules (Tr. pp. 46-49, 193-94).  She then entered a wilderness program that is a crisis intervention program for teenagers (Parent Ex. L).  It was anticipated that the student would return to Dewey upon the successful completion of the wilderness program (id.). 

            On January 5, 2006, the student's mother sent petitioner a letter indicating that she received petitioner's letter stating that the student's case would be closed due to lack of parental cooperation (Dist. Ex. 25; Parent Ex. M; Tr. pp. 347-48).  The student's mother reiterated that she had sent the requested paperwork to petitioner on at least four occasions and opined that the case should not have been closed (Dist. Ex. 25; Parent Ex. M; Tr. p. 347).  She noted that she was re-signing the documents so that the case could proceed to the review stage (Dist. Ex. 25, Parent Ex. M, Dist. Ex. 26; see also Dist. Ex. 29; Tr. pp. 232, 346-47).  Petitioner received the requested documents from respondent in late December 2005 or early January 2006 (Tr. pp. 334-36).  A CSE meeting was scheduled for January 31, 2006 (Dist. Ex. 28).

            The student returned to Dewey on January 18, 2006, however she was asked to leave shortly thereafter (Tr. pp. 74-75, 197, 351, 380, 407-08).  Her last day at Dewey was January 27, 2006 (Parent Ex. Y; Tr. p. 62).  On January 30, 2006, respondent enrolled the student in Elan (Dist. Ex. 34; Parent Ex. Q).  A social history completed by respondent at the time indicated that the student had behavioral problems including lying, stealing, and skipping classes (Dist. Ex. 37 at p. 3; Parent Ex. R at p. 3).  The social history also indicated that the student was doing drugs and drinking with friends, that her school performance was poor, and that she had run away (Dist. Ex. 37 at p. 3; Parent Ex. R at p. 3).

            The CSE convened for the student's initial review on January 31, 2006 (Dist. Ex. 9 at pp. 1, 2; Parent Ex. B at pp. 1, 2).  At the CSE meeting, petitioner was informed by a Dewey representative that the student had transferred to Elan the day before (Tr. pp. 234, 351, 407).  Petitioner was unaware of the transfer, and as a result, no one from Elan participated in the CSE meeting (Tr. pp. 351-52).  Based on the documentation submitted by respondent, as well as input from the founder of Dewey, who participated in the meeting by telephone, the CSE determined that the student did not have an educational disability and recommended that she not be classified (Dist. Ex. 9 at pp. 1, 2; Parent Ex. B at pp. 1, 2; see also Tr. pp. 191-93, 352-53, 408-09, 424-25).  The student's mother and her advocate reportedly conveyed to the CSE their belief that the student should have been classified as emotionally disturbed (Tr. pp. 377, 436).

            By letter dated February 2, 2005 respondent, through her attorney, amended her request for an impartial hearing (Parent Ex. A).  Specifically respondent claimed that no classroom observation was done in preparation for the CSE meeting and further that the CSE failed to consider the opinion of numerous professionals that the student met the criteria for classification as a student with an emotional disturbance and required placement in a therapeutic residential facility (Parent Ex. A at p. 3).  Respondent proposed that the student be classified as having an emotional disability and that an IEP be developed recommending residential placement (id.).  Respondent requested that the impartial hearing officer find that the CSE failed to properly classify the student as emotionally disturbed and develop an appropriate IEP for the 2005-06 school year; that the CSE failed to offer an appropriate program/placement for the student for the 2005-06 school year; and that respondent was entitled to tuition reimbursement for costs and fees for residential placement at Dewey and Elan from July 1, 2005 through June 30, 2006 (id.).

            An impartial hearing commenced on May 11, 2006 and concluded on May 19, 2006 after four days of testimony.¹  Respondent argued that the student was properly classified as a student with an emotional disturbance under the IDEA based upon the  opinions of  mental health professionals  who had concluded that the student showed signs of emotional disturbance   and therefore needed residential placement.  Petitioner argued that the student was not properly classified as a student with an emotional disturbance because the student's conduct disorder, lying, stealing and drug use were the reason for any of her difficulties and because the student was achieving passing grades and grades consistent with her cognitive abilities.

            The impartial hearing officer issued a decision dated June 15, 2006, which was subsequently corrected on June 20, 2006.  She granted respondent's request to classify her daughter as a student with a disability, specifically as a student with an emotional disturbance.  She held that the student was both "socially maladjusted," and also "seriously emotionally disturbed."  Specifically, the impartial hearing officer found that the student's chronic hair pulling and cutting behaviors were evidence of one of the characteristics of serious emotional disturbance because she "exhibited inappropriate types of behavior or feelings under normal circumstances"  (IHO Decision, pp. 13-14).  The impartial hearing officer noted her conclusion that the student's drug use was a symptom of the student's behaviors, but was not the cause of them. 

            The impartial hearing officer also ordered petitioner to reimburse respondent for her daughter's tuition costs at Elan, but denied respondent's request for tuition reimbursement for Dewey.  She noted that respondent had signed the consent for evaluations only after the 2005-06 school year had already begun and after the student had already been placed at Dewey.  She found that the student therefore did not lose any educational opportunity.  Regarding Elan, she noted that the school is recognized in New York as an emergency interim placement and that the evidence established that the student derived educational benefit from the program at Elan. 

            The impartial hearing officer next addressed an appellate case pending before the Second Circuit, Bd. of Educ. v. Tom F., 2005 WL 22866 (S.D.N.Y.), and provided in her decision for either direction the Second Circuit could take in its decision.  She held that the lower court decision in Tom F. barred reimbursement to parents if their children had not received special education services previously from a public agency.  She then held that if Tom F. was affirmed by the Second Circuit Court of Appeals, that respondent's claim would be barred because the student had never received special education from a public school or from a public agency.  She also held that if Tom F. was reversed, respondent would be entitled to reimbursement for Elan, which she found appropriate to meet the student's needs, but that respondent would not be entitled to reimbursement for Dewey.  She held that Dewey did not offer the emotional support for the student to make it reasonably calculated to provide educational benefit.

            Petitioner appeals and asserts that the impartial hearing officer erred in awarding tuition reimbursement to respondent for Elan because respondent's daughter never received special education in a public school or from a public agency.  Additionally, petitioner asserts that the impartial hearing officer erred by ordering the student classified as a student with an emotional disturbance.  Lastly, petitioner asserts that the equities do not favor respondent and that tuition reimbursement for Elan should also be denied on that basis.  Respondent cross-appeals the impartial hearing officer's decision to the extent that respondent was denied tuition reimbursement for Dewey.  Respondent cross-appeals and asserts that Dewey was reasonably calculated to provide educational benefits to the student and requests tuition reimbursement for Dewey.  Petitioner answered respondent's cross-appeal, denying respondent's assertions.² 

            First, petitioner asserts that the impartial hearing officer erred by granting tuition reimbursement because the student had never received special education from a public school or public agency.  Petitioner bases this argument upon Bd. of Educ. v. Tom F., 2005 WL 22866 [S.D.N.Y.]), vacated and remanded, 2006 WL 2335239 (2d Cir.), along with other case law.  On August 9, 2006, subsequent to petitioner's initiation of this appeal, the Second Circuit Court of Appeals vacated and remanded Tom F. in light of the Court's decision on July 27, 2006 in Frank G. v. Bd. of Educ., -- F.3d --, 2006 WL 2077009 (2d Cir.).  Frank G. holds that the Individuals with Disabilities Education Act (IDEA) does not preclude tuition reimbursement where special education and related services have not been previously provided to a student by a public school or public agency (2006 WL 2077009, at *14).  Therefore, in the present case, the fact that the student had not previously been provided with special education or related services from a public school or agency does not preclude tuition reimbursement.

            Second, petitioner asserts that the impartial hearing officer erred in finding that the student should be classified as a student with an emotional disturbance.  The impartial hearing officer found that the student met the criteria for a "serious emotional disturbance" based on her chronic hair pulling and self-cutting.  The impartial hearing officer noted that the student "did not perform in school ever since she was a second grader," failed to do homework, and required tutoring and summer school (IHO Decision, p. 14).  However, the impartial hearing officer did not make a finding that the child had an emotional disturbance that adversely affected her educational performance and required special education. Petitioner asserts that the student's academic achievement is in the average range, and is at or above the expected level.  Additionally, petitioner acknowledges the serious nature of the student's behavior, but asserts that her behavior is not adversely affecting her educational performance such that she requires special education.  Respondent denies petitioner's assertions and requests that the impartial hearing officer's decision be upheld.  Respondent asserts that the student meets the criteria for classification as a student with an emotional disturbance because her emotional disturbance impedes her learning.

            Respondent's cross-appeal is relevant to a discussion of the student's classification, because it seeks tuition reimbursement for Dewey for fall 2005, which is prior to the meeting at which the CSE found that the student was not appropriately classified as a student with a disability that impeded her educational performance.  Respondent asserts that petitioner had a duty to observe the student while she was attending Dewey, that the student was appropriately classified by the impartial hearing officer as a student with an emotional disturbance, and that Dewey was reasonably calculated to meet the student's needs.

            First, I will address respondent's assertion that petitioner should have evaluated the student prior to her vacation, or in the alternative, that petitioner was required to travel to Dewey to evaluate the student.  The impartial hearing officer held that petitioner's CSE should not be faulted for not conducting evaluations between the date of its receipt of respondent's July 18, 2005 letter and prior to July 28, 2005 (IHO Decision, p. 13).  The impartial hearing officer further held that because of the student's August 2005 enrollment in Dewey, and because respondent signed the consent for initial evaluations on September 23, 2005, the student lost no educational opportunity (id.). 

            IDEA 2004, effective July 1, 2005, provides that an initial evaluation of a student is required to take place "within 60 days of receiving parent consent for the evaluation…" (20 U.S.C. § 1414[a][1][C][i][I]).  IDEA provides two exceptions to the 60 day time restriction, one of which states that the time restriction does not apply if "the parent of a child repeatedly fails or refuses to produce the child for the evaluation" (20 U.S.C. § 1414[a][1][C][ii][II]).  Prior to the initial evaluation, parental consent is required to be obtained (20 U.S.C. § 1414[a][1][D]).  New York regulations require a school district to document attempts made if parental consent is not obtained within 30 days of the initial referral (8 NYCRR 200.4[a][8]).     

            The record reveals that when the student was expelled from Smith in April 2005, the parents began exploring residential (boarding) schools with an educational advocate's assistance (Tr. pp. 142, 146-47; Dist. Ex. 6 at p. 4; Parent Ex. P at p. 3).  In May or June 2005, the student's parents visited various programs and determined that they preferred Dewey over other programs visited (Tr. p. 142).  Also during this time period, the parents had the student privately evaluated by a neuropsychologist (Dist. Ex. 6; Parent Ex. P).  Following school visitations and the conclusion of the neuropsychological evaluation, the parents referred the student to the CSE by letter dated June 23, 2005 (Parent Ex. C; Dist. Ex. 11).  Petitioner contacted respondent by letter dated July 12, 2005 to schedule evaluations.  By letter dated July 18, 2005, respondent informed petitioner that the student would be leaving on vacation on July 28, 2005 but would be available for an evaluation prior to that time (Parent Ex. D; Dist. Ex. 12; Tr. pp. 148, 208).  The student traveled abroad with respondent (Tr. p. 142), reportedly returning home on August 12, 2005 (Dist. Ex. 12).  The student began attending Dewey in Great Barrington, Massachusetts on August 17, 2005 (Parent Ex. E; Tr. pp. 145, 183-84).  On August 26, 2005, respondent informed petitioner that she had enrolled the student at Dewey (Parent Ex. E).  

            Under these circumstances, I concur with the impartial hearing officer's conclusion that petitioner did not err in not completing an assessment   prior to the commencement of the 2005-06 school year due to the timing of respondent's evaluation request, respondent's family vacation, and respondent's mid-August enrollment of the student at Dewey.  Moreover, as detailed below, respondent did not provide consent to evaluate the student until September 23, 2005 (Dist. Ex. 4). 

            Next, the parents assert that on September 23, 2005 they signed a consent for the student to be evaluated and that the district should have traveled to Dewey to evaluate her (Dist. Ex. 4; Answer ¶¶ 20, 21, 22, 24, 65, 70, 72).  The parents assert that the student was improperly evaluated by respondent, specifically that no classroom observation of the student or functional behavioral assessment (FBA) was conducted (Parent Ex. A at pp. 2, 3; Answer ¶ 3).

            Under the circumstances of the present case, petitioner's CSE had no duty to travel to Dewey in Massachusetts to evaluate or observe the student during fall 2005.  Respondent asserts on appeal that she never had reason to believe that petitioner would not evaluate the student at Dewey after she signed the consent form on September 23, 2005 (Answer ¶ 72).  Petitioner asserts that respondent had informed petitioner on September 23, 2005 that no one could visit the student at Dewey, not even the mother herself (Tr. p. 326).  Petitioner also notes that respondent responded to letters requesting that the student be brought back to the district for evaluation by declining the request, and noting on October 5, 2005 and November 2, 2005 that the student was unable to return to the district (Parent Exs. G, H). 

            Additionally, there is authority for the proposition that the CSE need not travel to an out-of-state private school for an evaluation of a student (see Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462, 469 [7th Cir. 2000] [holding that sending a student to an out-of-state private school, offering the district the option of traveling to the student, and failing to return the student to the district for evaluation upon request "deprived the School District of a reasonable opportunity to conduct an in-state evaluation"]; Great Valley Sch. Dist. v. Douglas M., 807 A.2d 315, 321 [Pa. Cmwlth. 2002] [holding, in a case involving classification, that "a school district cannot be compelled to assume any responsibility for evaluating a child while he remains outside [the state] in a unilateral placement"] [citing Patricia P.]; Manatee Co. Sch. Bd., 45 IDELR 144 [SEA FL 2005] ["the School Board is not required to evaluate [the student] at the private residential school [out of state] where she was unilaterally placed by her parents"] [citing Patricia P. and Great Valley]; see generally 20 U.S.C. § 1414[a][1][C][ii][II] [60 day timeline to evaluate does not apply if "the parent of a child repeatedly fails or refuses to produce the child for the evaluation"]).  The fact that professionals may have recommended that the student not leave the out-of-state facility to return to the district for an evaluation does not change this conclusion (Great Valley, 807 A.2d at 318; Manatee Co. Sch. Bd., 45 IDELR 144).  Although in the present case respondent had sent a request for an initial evaluation prior to the student's removal from the district, as noted above, respondent then took the student on a vacation, and immediately upon return enrolled her at Dewey without notice to petitioner.³     

            Based upon the foregoing, and upon all the circumstances present in this case, I find that the CSE was not required to evaluate or observe the student at Dewey in fall 2005.

            Next, I will consider the impartial hearing officer's determination that the student is properly classified as a student with an emotional disturbance.  Petitioner asserts that the student is not properly classified, and respondent asserts that the impartial hearing officer properly classified the student 

            When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed (Application of a Child Suspected of Having a Disability, Appeal No. 05-047); Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059).  An individual evaluation must include at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4[b][1]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of a Child Suspected of Having a Disability, Appeal No. 04-063).

            In order to be classified as a child with a disability under federal or state law, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student's educational performance to the extent that he or she requires special services and programs (20 U.S.C. § 1401[3] [defining a child with a disability as one who, by reason of their disability, "needs special education and related services"]; 34 C.F.R. § 300.7[a][1] [same]; 8 NYCRR 200.1[zz] [defining a student with a disability as one who "requires special services and programs"]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65-66 [2d Cir. 2000] [noting that neither IDEA nor federal regulations define "need special education" or "adverse effect on educational performance"]; Muller v. Committee on Special Education of East Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047).

            Specifically, emotional disturbance is defined as: "a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia.  The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance" (8 NYCRR 200.1[zz][4] [emphasis added]; see also 34 C.F.R. § 300.7[c][4]).  The student therefore must not only manifest one of the numbered characteristics, but the emotional disturbance must adversely affect the student's educational performance to the extent that she requires special education (see N.Y. Educ. Law 4401[1]).

            The CSE met on January 31, 2006 and determined that the student was not eligible for classification (Dist. Ex. 9 at pp. 1, 2; Parent Ex. B at pp. 1, 2; see also Tr. pp. 191-93, 352-53, 408-09, 424-25).  The CSE reportedly considered the following information in making its determination: the student's discharge summary from New York Hospital (Dist. Ex. 7), a report from the student's private therapist (Dist. Ex. 8; Tr. p. 393), a private neuropsychological evaluation (Dist. Ex. 6; Tr. p. 394), an undated report from the student's private psychiatrist (Dist. Ex. 5; Tr. pp. 391-92), progress reports from Dewey (Dist. Ex. 10) and a social history provided by respondent to petitioner in September 2005 (Dist. Ex. 3; Petition ¶ 24; see also Tr. pp. 353, 375, 406).  As noted above, an observation was not performed.  The founder of Dewey participated in the CSE meeting (Tr. p. 350), as did an advocate for the parent (Tr. pp. 350, 436).  Several CSE members concluded that the student had a conduct disorder (Tr. pp. 352, 376, 382-83, 422, 446, 490-91).  This was consistent with reports generated by the parents' professionals and reviewed by the CSE (Parent Exs. O, P at p. 7; Dist. Ex. 6 at p. 8; Dist. Ex. 8 at p. 2; Tr. pp.  120, 127).  The student was found to be ineligible for classification under the IDEA.  The student's mother and the educational advocate reportedly thought that the student should have been classified as emotionally disturbed (Tr. pp. 377, 436). 

            District witnesses testified that the student was academically capable, and at the time of the CSE meeting was receiving passing grades (Tr. pp. 352-53, 377, 430-31).  In addition, district staff noted that the evaluations submitted to the CSE for review contained diagnoses for conduct disorder and did not contain emotional disturbance diagnoses (Tr. pp. 418-21, 445-46, 482).  They concluded that the student was not eligible for classification under IDEA (Tr. pp. 352, 378-80, 410, 425, 482).

            Witnesses for respondent acknowledged the student's conduct disorder (Tr. pp. 113-14, 120, 127, 167), however, they opined that the student also met the criteria for classification as having an emotional disturbance (Tr. pp. 50-51, 105-06, 166, 567, 583).

            Witnesses for respondent testified that the student had an inability to learn that could not be explained by intellectual, sensory, or health factors (Tr. pp. 116-17, 155-56, 166-67, 569); an inability to build or maintain satisfactory interpersonal relationships with peers and teachers (Tr. pp. 103, 117-18, 124-25, 166, 237-38, 374, 569); inappropriate behaviors and feelings under normal circumstances (Tr. pp. 118, 166-67, 569); and a tendency to develop physical symptoms or fears associated with personal or school problems (Tr. pp. 118-19, 570).

            The impartial hearing officer held that the student should have been classified by the CSE as a student with an emotional disturbance because she exhibited behaviors - chronic hair pulling and self-cutting - that evidenced a serious emotional disturbance (IHO Decision, pp. 13-14).  She found that the student "exhibited inappropriate types of behavior or feelings under normal circumstances" (IHO Decision, p. 14) and ordered that the student be classified as emotionally disturbed (IHO Decision, p. 17).  However, the impartial hearing officer failed to consider whether the student's condition affected her educational performance to the extent that she required special education services and programs.  The impartial hearing officer failed to even reference the student's educational performance, other than generally noting her opinion that the student "did not perform in school ever since she was a second grader"  (IHO Decision, p. 14).

            Historically, the student struggled academically.  In elementary school, she received assistance from the learning center and private tutors, and also attended summer school (Dist. Ex. 6 at p. 3, Parent Ex. P at p. 2; see also Dist. Ex. 3 at p. 1; Tr. p. 354).  The student failed several of her ninth grade classes and was required to attend summer school (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2; Tr. p. 583).  The student also attended summer school following tenth grade (Dist. Ex. 6 at p. 3; Parent Ex. P at p. 2).  At the time the parents initially referred their daughter to the CSE the student was receiving home tutoring.  The student's father reported that despite individual tutoring the student had failed history (Tr. pp. 522-24, 538).

            Several of the witnesses opined that the student's problems interfered with her educational performance (Tr. pp. 97, 103, 115, 123, 133-34, 155, 236).  The founder of Dewey opined that the student was not as of that day "college material" because her psychological issues precluded her from really concentrating and working to capacity (Tr. p. 97).  He further opined that the student's truant, stealing, and runaway behaviors contributed to the student underperforming academically prior to entering Dewey (Tr. p. 103).  The student's private therapist indicated that the student's behaviors, such as smoking marijuana between classes, impeded her learning (Tr. pp. 115, 123-24). The student's mother opined that the student failed classes because she did not want to study and she refused to do her work (Tr. pp. 133-34).  The neuropsychologist who evaluated the student opined that part of the student's problem involved behavior where the student got out of control, which affected her both socially and academically (Tr. p. 155).  Based on her testing the neuropsychologist reported that the student's handwriting was "low" (Tr. p. 159).

            The most recent educational record available to the January 30, 2006 CSE was a November 2005 progress note from Dewey.  As of November 2005, the student had earned the following grades at Dewey:  B in Novel; D in U.S. History; D in Pre-Calculus; C in Chemistry; B in Spanish; and an A in Studio Art (Dist. Ex. 10).  The dean of students at Dewey testified that at first the student struggled greatly with academics, however, she confirmed that the student was receiving passing grades (Tr. pp. 65-66).  The founder of Dewey opined that the school's academics were on par with the most elite prep schools in the country (Tr. p. 89).

            The record does not contain any transcripts or progress reports from other high schools attended by the student, nor is there any documentary evidence or testimony relative to the student's actual grades at Heschel, Beekman, or Smith.  The record also does not include testimony, narratives, or anecdotal records from any of the student's teachers that might provide insight into her academic needs.  The record does not indicate how many credits the student has earned toward a diploma, however there is no indication that the student has been held back a grade or that she will not graduate on schedule.

            While I agree with the impartial hearing officer and respondent's witnesses who concluded that the student exhibited cutting and hair pulling behaviors in addition to a conduct disorder, respondent has not shown that these   difficulties affected her educational performance to the extent that she requires special education.  None of respondent's witnesses cited specific academic problems that the student was experiencing, nor did they suggest that specially designed individual instruction was needed to meet the unique needs of the student.  Rather, those professionals that recommended a therapeutic boarding school for the student did so based on the student's conduct disorder and not on her educational needs (Dist. Ex. 5 at p. 2; Parent Ex. N at p. 2; Parent Ex. O at p. 2; Tr. pp. 157-58, 377). 

            Based upon the foregoing, I find that the student was not properly classified as a student with an emotional disturbance.  The record does not afford a basis for classifying the student as a child with an emotional disturbance under any of the definitions of that term in federal or state regulations.  Consequently, the impartial hearing officer's decision to classify the student as a student with an emotional disturbance is not supported by the record.  Therefore respondent is not entitled to tuition reimbursement (20 U.S.C. § 1412[a][10][C]; see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision is annulled.