06-087

           Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's residential tuition costs at the Family Foundation School (Family Foundation) for the 2005-06 school year.  Respondent cross-appeals from that portion of the impartial hearing officer's decision which found that its Committee on Special Education (CSE) predicated its determination that petitioners' son was not eligible to receive special education services upon insufficient and inadequate information and that it failed to offer an appropriate educational program to petitioners' son for the 2005-06 school year.  The appeal must be dismissed.  The cross-appeal must be sustained.

            At the commencement of the impartial hearing on January 4, 2006, the student was almost 15 years old and attending ninth grade at Family Foundation, where he had been unilaterally placed by petitioners for the 2005-06 school year.  Family Foundation is described as a private residential school with a therapeutic component (Tr. pp. 99-101) that utilizes the Alcoholics Anonymous Twelve-Step approach as a counseling method throughout the school (Dist. Ex. 8 at p. 1).  Family Foundation has not been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  Petitioners' son was not classified as eligible to receive special education services.  The student was described as "capable, verbally adept and expressive" (Parent Ex. J at p. 2).  He achieved grades consisting of mostly Bs and Cs at respondent's middle school (Parent Ex. C at p. 1).  However, at times, petitioners' son reportedly exhibited a lack of effort, difficulty with authority, conduct problems, attention problems and intentional noncompliance (Parent Ex. J at p. 2).  It was reported that the student sought attention from teachers and peers in a variety of negative ways (id.).  The student's eligibility for special education programs and services as a student with an emotional disturbance is in dispute in this appeal (see 8 NYCRR 200.1[zz][4]).

            Petitioners' son attended respondent's schools from kindergarten through May 2005 of his eighth grade year (Parent Ex. J at p. 1).  In third grade, the student received a five day out-of-school suspension resulting from a physical altercation with another student (Tr. p. 156; Parent Ex. Z).  A private neuropsychological evaluation of the student, conducted during third grade, indicated that "traits" revealed during the evaluation were consistent with an attention deficit disorder (Parent Ex. K at p. 1).  In November 1999 a physician opined that the student appeared to be an angry child whose reaction to family problems resulted in inappropriate behaviors including aggressive conduct toward peers, stealing and use of vulgar language (Parent Ex. OO).  The physician opined that the student was not a danger to himself at that time, but indicated that the student needed a structured environment at school and home, and that he needed psychotherapeutic intervention to help him express his anger appropriately and accept responsibility for his misbehavior (id.).  At an unspecified time in 1999, the student began to receive "therapy" from an unspecified source (Tr. p. 173).  In sixth grade, while attending respondent's middle school, the student received disciplinary referrals for a variety of infractions (Parent Ex. R at pp. 4, 5, 6).  The student received two in-school suspensions and three disciplinary referrals during his 2003-04 seventh grade year (Parent Ex. R at pp. 7, 9, 10, 13, 14).  From September 2004 until April 2005 a private social worker provided the student with weekly individual/family therapy that focused on the student's behavioral problems (Tr. pp. 242-43, 249). 

            The student's academic performance was reportedly "generally acceptable" from kindergarten through eighth grade (Parent Ex. J at p. 2).  During the first two quarters of the 2004-05 school year while in eighth grade, the student achieved mostly grades in the B-C range (Parent Ex. Q at pp. 4, 5).¹  At the end of the third quarter, the student achieved an A- in Science, a C+ in Social Studies, a B- in Health, an F in Spanish, a B in Technology, an A in Photo and Art, a C- in Physical Education, a D in English and a B- in Math (Parent Ex. Q at p. 6).  Teacher comments during the student's eighth grade year included "not being attentive in class," "disrupting class," "inconsistent achievement," "behavior affecting performance," and "has ability to do better" (id.).  During spring 2005, the student was referred for disciplinary action on at least 12 occasions; one incident resulted in an in-school suspension (Parent Ex. R at pp. 11, 12, 15, 17-19, 21-23, 26; Parent Ex. BB at pp. 6, 12).  The student's mother reported that she spoke to the student's Spanish teacher, the middle school principal and middle school dean regarding her son's behavior (Tr. p. 275) and met with the middle school psychologist, the dean of students, and the principal regarding the student's behavior in March 2005 (Tr. pp. 1131-34).  From April 13 through April 15, 2005 the student received an out-of-school suspension for "gross insubordination" and a "continued pattern of disruptive behavior" (Parent Ex. R at pp. 24, 25).  In late April 2005, the student's mother informed the middle school psychologist that she was planning on visiting Family Foundation's program (Tr. pp. 1137-39).  The middle school psychologist reported that during this conversation with the student's mother, she reviewed the CSE process and reportedly agreed with her that her son was not "in need" of special education services (Tr. p. 1138).  On May 6, 2005 the student was removed from respondent's middle school (Parent Ex. DD at p. 2).  Petitioners unilaterally enrolled their son at Family Foundation on May 9, 2005 (Tr. p. 140).

            By letter dated May 23, 2005, the student's mother requested a CSE evaluation of her son due to her belief that he required "residential special education services" (Parent Ex. H).  Respondent obtained consent to evaluate the student on June 1, 2005 (Parent Ex. I).  Later that month, the student's mother notified respondent's CSE (Parent Ex. L) that she was obtaining a private psychological evaluation of her son (Parent Ex. J) and provided dates she was available to attend his CSE meeting (Parent Ex. M).  By letter dated June 24, 2005, respondent's director of pupil personnel services informed petitioners that the CSE reserved the right to evaluate the student if they required additional information (Dist. Ex. 5).

            In late June and mid July 2005, petitioners obtained a private psychological evaluation of their son (Parent Ex. J).  The private psychologist reported that during testing the student verbalized extensively and that his behavior and "chatter" were frequently inappropriate, intrusive and without logical aim (Parent Ex. J at p. 3).  Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension index score of 132 (98th percentile), a perceptual reasoning index score of 106 (66th percentile), a working memory index score of 107 (68th percentile), and a processing speed index score of 85 (16th percentile) (id.).  The psychologist concluded these scores presented a widely variable profile with a significant weakness in processing speed (Parent Ex. J at pp. 3-4).  The psychologist opined that deliberate opposition, ongoing impulsiveness and distractibility interfered with the student's work speed (Parent Ex. J at p. 4).  The student did not cooperate with administration of all subtests of the Basic Achievement Skills Inventory (id.).  The Peabody Individual Achievement Test-Revised-NU was administered (id.).  The student achieved a total reading standard score (SS) of 108 (70th percentile), a mathematics SS of 102 (55th percentile) and a spelling SS of 98 (45th percentile) (id.).  The private psychologist reported that the student's academic achievement scores approximated those of a student who completed eighth grade (id.).  The private psychologist constructed the student's personality profile from a clinical interview with the student, the student's parents, and faculty from Family Foundation, completion of the Behavior Assessment System for Children (BASC) by his parents and one staff member from Family Foundation, and the student's completion of two personality inventory forms (Parent Ex. J at p. 4; Tr. p. 73).  He concluded that the student's behaviors and personality characteristics rendered him "unmanageable" in a traditional school setting or home setting (Parent Ex. J at p. 5), and that he met the criteria for diagnoses of an attention deficit/hyperactivity disorder (ADHD), oppositional defiant disorder (ODD) and depressive disorder not otherwise specified (Parent Ex. J at pp. 5, 6).  The private psychologist opined that the student's acting out behavior created major problems at respondent's school and crisis in his home such that placement at Family Foundation was appropriate and necessary (Parent Ex. J at p. 6).  He further opined that the student met the criteria for classification as a student with an emotional disturbance (Tr. p. 58) and recommended that he "receive continued treatment from a therapeutic residential school" (Dist. Ex. J at p. 6).

            On July 18, 2005 the student underwent a private psychiatric evaluation (Parent Ex. K).  The private psychiatrist reported that the student's behavioral problems manifested in the form of aggression toward peers and resistance to authority figures (Parent Ex. K at p. 1).  The private psychiatrist diagnosed the student with ADHD and a dysthymic disorder (Parent Ex. K at p. 2).  He reported that the student had an inability to build or maintain satisfactory interpersonal relationships with peers and teachers, and also demonstrated inappropriate types of behavior or feelings under normal circumstances (id.).  The psychiatric report also indicated that the student had a "generally pervasive mood of unhappiness or depression which he acts out as do adolescents his age" (id.).  The private psychiatrist opined that the student had an emotional disturbance that had existed over a long period of time and to a marked degree that adversely affected his educational and social performance, such that he is a student with a disability and in need of special education (Parent Ex. K at p. 3).  He recommended that the student remain at Family Foundation and obtain "further psychiatric therapy," including a trial of medication to improve his attention skills, in a structured supportive environment (id.). 

            Petitioners provided respondent's school psychologist with the private psychological and psychiatric evaluation reports and provided consent to evaluate the student at Family Foundation by letter dated August 2, 2005 (Parent Ex. O).  The student's mother requested the school psychologist contact her if, after reviewing the private evaluation reports provided, she determined further testing was necessary (id.).  I note that a letter to the student's file dated August 3, 2005 reported that the student's mother informed one of respondent's school psychologists that she would not bring her son to the district to be evaluated (Dist. Ex. 6).  By letter dated September 7, 2005, petitioners indicated that although they provided the private psychological and psychiatric evaluation reports to the CSE, no CSE meeting was held or placement offered, and therefore, the student remained at Family Foundation (Parent Ex. N).  The student's parents requested that a CSE convene as soon as possible (id.).

            The student attended Family Foundation during summer 2005 and the 2005-06 school year (Parent Ex. T).  During fall 2005 the student was instructed in Earth Science, English, Global Studies, Math, Spanish and a variety of ancillary subjects (Parent Ex. T at p. 5).  As of November 2005, the student's grades were in the 75-90 range (id.).  The student was assigned to a "family" led by a family leader (Tr. pp. 371, 375).  A family was composed of approximately 30 students and 12-15 staff members consisting of counseling staff, academic staff, student advising staff and possibly maintenance staff (Tr. pp. 375-76).  The student's family leader reported that in fall 2005 the student was "very unfocused" academically and acted out with his teachers (Tr. p. 377).  He characterized the student's behavior problems as primarily "smart-aleck" behavior (Tr. p. 378).  Interventions used by Family Foundation to address the student's behaviors included time outs, work sanctions, apologies to the teacher and peer counseling (Tr. pp. 382-84).  The record suggested that the student was seen by a Family Foundation staff member identified in testimony as a psychologist once a week from October 2005 until December 2005 (Tr. p. 393).

            On October 12, 2005 respondent's high school psychologist, who was also the student's CSE case manager (see Parent Ex. C), conducted a classroom observation and clinical interview of the student at Family Foundation (Tr. pp. 1251-55; Parent Ex. QQ).  The student was observed in his Spanish class with 11 other students (Parent Ex. QQ).  The observation report indicated that the student exhibited variable attention and required redirection from the teacher to attend (id.).  The student was reportedly in "constant motion" during the observation yet was able to successfully answer questions (id.).  The high school psychologist met with the student after the observation for the clinical interview that lasted approximately 30-40 minutes in which he assessed the student for characteristics of depression, attention difficulties, oppositional behaviors and illegal drug usage (Tr. pp. 1253-54).  After the observation and discussion with the student's teacher, the high school psychologist concluded that the student's behavior was appropriate to the classroom setting with regard to academic follow through and compliance with classroom rules, and that he had problems at home rather than school (Tr. pp. 1254-57).

            By letter dated October 18, 2005, the student's mother requested an "immediate" CSE meeting (Parent Ex. P).  By letter dated October 31, 2005 petitioners requested an impartial hearing and alleged that respondent's CSE failed to conduct a review to classify the student and recommend an appropriate placement for the 2005-06 school year (Parent Ex. A).  Petitioners requested that the CSE convene, classify their son as "emotionally disturbed" and reimburse them for the 12-month residential tuition costs at Family Foundation for the 2005-06 school year and the costs of the private evaluations of the student (Parent Ex. A at p. 2).

            On November 17, 2005 the CSE convened for an initial review of the student (Parent Ex. C).  CSE participants included the student's parents, three of respondent's school psychologists, including the high school psychologist who conducted the observation of the student at Family Foundation, a special education teacher, and a general education teacher (id.).  A guidance counselor from Family Foundation, the middle school psychologist and the middle school assistant principal, who was formerly the student's middle school dean, participated by telephone (id.).  Comments from the CSE meeting indicated that while at respondent's middle school the student achieved grades in the B to C range, his teacher and peer relationships were mostly positive and he appeared happy in school (id.).  Although the referral to the CSE was initiated by the student's parents due to their concerns about his behavior, it was reported that the student's behavior in school appeared to be attention seeking, that he was not a danger to himself or others, and he was "not consistently a behavior problem" warranting referral to the school's Instructional Support Team (IST) (Parent Ex. C; see Tr. pp. 876-77).  Although the student's behavior was reportedly not "severe" in school, respondent's guidance counselor indicated that his behavior was significantly more difficult at home (Parent Ex. C at p. 2).  The CSE notes indicated that the high school psychologist reviewed the private psychological and psychiatric evaluations of the student and it was discussed that clinical diagnoses do not always indicate an educational disability (id.).  The CSE determined that the student was ineligible for special education services since the presence of an educational disability was not established (id.).

            Petitioners did not accept the CSE's recommendation that the student was ineligible for special education services (id.).  By letter November 21, 2005, petitioners amended their impartial hearing request to include an allegation that respondent's CSE failed its "child find" obligations by failing to identify the student as a student with a disability (Parent Ex. B).  Petitioners further allege that their son should have been classified as a student with an emotional disturbance, that respondent's CSE failed to offer their son an appropriate program for the 2005-06 school year, that Family Foundation was an appropriate placement for their son, and that equitable considerations favor an award of tuition reimbursement (id.).

            By letter to the student's parents dated December 2, 2005, respondent's supervisor of special education reviewed what transpired at the November 17, 2005 CSE meeting and stated that although the CSE determined that the student was not eligible for special education services, he could benefit from school related counseling at the "building level through the guidance counselor or school psychologist as a pre-referral intervention service" (Dist. Ex. 7).  The letter indicated that respondent had made "several" unsuccessful attempts to conduct a psychological evaluation of the student at its school (id.).  The letter also indicated that the student's parents made him unavailable for evaluation until August 2, 2005 when the district was invited to evaluate the student at Family Foundation (id.).  In early December 2005 correspondence to respondent's staff, the student's parents waived the proposed resolution session (Parent Ex. G) and stated they wished to proceed to an impartial hearing (Parent Ex. F).

            The impartial hearing commenced on January 4, 2006 and concluded on May 31, 2006 after eight days of testimony.  On June 28, 2006, the impartial hearing officer rendered her decision.  The impartial hearing officer found that respondent did not violate its "child find" obligations, that the student was successful in school through eighth grade and that respondent did not have sufficient reason to suspect that the student needed special education services (IHO Decision, p. 10).  However, the impartial hearing officer found that there was no indication that the CSE conducted or considered a physical examination of the student (IHO Decision, p. 25).   She also found that a social history, while completed, was not made a part of the record (IHO Decision, pp. 24-25).  The impartial hearing officer noted that the CSE failed to conduct a functional behavioral assessment (FBA) as part of its evaluation of the student (IHO Decision, p. 24).  The impartial hearing officer found that the psychological and psychiatric evaluations considered by the CSE did not "provide a complete picture of the student that [was] consistent with the record" (IHO Decision, pp. 23-24).  The impartial hearing officer found that respondent's CSE's determination that the student was ineligible for special education services was predicated upon insufficient and inadequate information (IHO Decision, p. 24). 

            Despite having found that the CSE's determination that the student was ineligible for special education services was predicated upon insufficient and inadequate information, the impartial hearing officer went on to find that respondent failed to offer a free appropriate public education (FAPE) (IHO Decision, p. 24).  The impartial hearing officer also found that Family Foundation was not providing an appropriate program for the student (IHO Decision, p. 33) and that there was no showing that the student required residential placement to benefit from his educational program (IHO Decision, p. 34).  Thus, the impartial hearing officer denied petitioners' residential tuition reimbursement claim and remanded the matter to the CSE to obtain: 1) a physical examination, 2) a social history; 3) an FBA; and 4) a comprehensive psychological evaluation that is reliable as an evaluative instrument for determining whether the student is eligible for special education services (IHO Decision, p. 35).

            Petitioners contend on appeal that respondent's CSE failed its "child find" obligations by failing to identify the student as a student with a disability.  Petitioners allege that their son should have been classified as a student with an emotional disturbance, that respondent's CSE failed to offer their son an appropriate program for the 2005-06 school year, that Family Foundation is an appropriate placement for their son, and that equitable considerations favor an award of tuition reimbursement. 

            Respondent cross-appeals contending that the impartial hearing officer improperly shifted the burden to it when determining that respondent failed to offer a FAPE to the student for the 2005-06 school year.  Respondent also contends that the impartial hearing officer erred in determining that its CSE was required to conduct a psychological examination when its CSE had access to and considered petitioners' private psychological and psychiatric evaluations.  Respondent further contends that the impartial hearing officer erred in finding that the CSE did not have sufficient evaluations, including having a physical examination and social history available at the time of the CSE, to determine that the student was not eligible for special education services.  Respondent asserts that not conducting an FBA was "not fatal" to its CSE's determination that the student was ineligible for special education services because there was no evidence that the student's behavior impeded his learning or that of others.  In addition, respondent asserts that its CSE had sufficient evaluative data to determine that the student was not eligible for special education services.

            First I will address petitioners' contention that respondent's CSE failed to meet its "child find" obligations.   A school district must provide a FAPE to students who have met the criteria for identification as students with disabilities under the IDEA² and Article 89 of the New York State Education Law.  State and local educational agencies also have an affirmative duty to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]³).  To satisfy this "child find" requirement, a board of education must have procedures in place that will enable it to find such children (Application of a Child with a Disability, Appeal No. 93-41).  The child find duty is triggered when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]).  The provision applies to children who are suspected of being a child with a disability and in need of special education, even though they are advancing from grade to grade (34 C.F.R. § 300.111[a][2][ii]). 

            In this appeal, the issue is not whether the procedures were in place, but rather, whether upon the facts presented the student should have been referred to the CSE (Application of a Child Suspected of Having a Disability, Appeal No. 05-040; Application of a Child with a Disability, Appeal No. 01-058; Application of the Board of Educ., Appeal No. 00-052).  Petitioners claim that respondent failed to satisfy its child find obligations.  Specifically, they assert that their son should have been referred to the CSE and that the CSE should have classified him as a student with an emotional disturbance.  The impartial hearing officer found that the student was successful in school through the eighth grade and that respondent did not have sufficient reason to suspect that the student needed special education services (IHO Decision, p. 10).  I agree.

            By letter dated May 23, 2005, the student's mother requested that her son be evaluated by the CSE due to her belief that he required "residential special education services" (Parent Ex. H).    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 the Bd. of Educ., Appeal No. 06-077; 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 mustinclude 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).

            Petitioners contend that the CSE failed to obtain a physical examination of their son as required for an initial evaluation.  Respondent asserts that such claim was not properly before the impartial hearing officer because the issue of its absence was first raised by petitioners in their post hearing memorandum of law.  Respondent asserts that it provided a copy of the student's physical examination report to the impartial hearing officer before she rendered the decision, but she declined to accept the document (Am. Answer ¶ 54).  I agree that the issue was not properly raised below (Application of a Child with a Disability, Appeal No. 06-039; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024).

            Petitioners also contend that the CSE failed to conduct an FBA of their son.  Petitioners' original due process complaint notice alleges that respondent failed to evaluate their son (Parent Ex. A).  The impartial hearing officer found that an FBA was required because petitioners sought to have their son classified as a student with an emotional disturbance, defined in part as a condition that adversely affects a student's educational performance, and because petitioners alleged that the student's behavior impeded his learning (IHO Decision at p. 24; see NYCRR 200.1[zz][4]).  Respondent asserts that there was no evidence that the student's behavior impeded his learning or that of others.

            State regulations require the initial evaluation to include an FBA of a student "…whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities" (8 NYCRR 200.4[b][1][v]; Application of a Child with a Disability, Appeal No. 04-112; Application of a Child with a Disability, Appeal No. 01-094). Further, the IDEA and state regulations mandate that a CSE must consider strategies and supports to address a student's behavior that impedes his or her learning or that of others (20 U.S.C. § 1414[d][3][B][i]; 8 NYCRR 200.4[d][3][i]).

            The record reflects that during the 2004-05 school year, the student did not receive a disciplinary referral until February 2005 (see Parent Exs. R, BB).  Through the third quarter of the school year, the student received passing grades in most of his classes (Parent Ex. Q at p. 6).  Based upon the record, I cannot conclude that that an FBA was required in this instance because the evidence does not demonstrate that his behavior impeded his learning or that of others (Application of a Child with a Disability, Appeal No. 04-112; Application of a Child with a Disability, Appeal No. 03-095).  Moreover, even if the failure to conduct an FBA was in violation of state regulations, I find that the lack of an FBA did not render the CSE's determination invalid.

            In addition to petitioners' claims regarding the evaluation process, respondent cross-appeals contending that the impartial hearing officer erred in finding that the CSE was required to conduct its own psychological exam when it had access to and considered petitioners' private psychological and psychiatric evaluation reports.  The impartial hearing officer found that the psychological and psychiatric evaluations of the student considered by the CSE did not provide a complete picture of the student that was consistent with this record and that the CSE could not substitute analysis of how the student functioned within the school academically, emotionally and socially for an individual psychological evaluation (IHO Decision at pp. 23-24).  Respondent asserts that the CSE's disagreement with the findings of these reports did not obligate it to conduct its own evaluation of the student. A CSE must consider any private evaluation report submitted to it by a parent, as part of the CSE's review of a child (8 NYCRR 200.5[g][1][v][a]).  A board of education may conduct its own evaluations rather than simply accept private evaluations (Vander Malle v. Ambach, 673 F.2d 49 [2d Cir. 1982]; Rettig v. Kent City Sch. Dist., 720 F.2d 466 [6th Cir. 1983]; DuBois v. Connecticut State Bd. of Ed., 727 F.2d 48 [2d Cir. 1984]). Nevertheless, a CSE must be careful to avoid overly repetitive testing (Healey on behalf of Healey v. Ambach, 103 A.D.2d 565 [3d Dept. 1984]; Application of a Child with a Disability, Appeal No. 01-076).  Although a CSE is required to consider reports from privately retained experts, it is not required to follow their recommendations (see e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]; see also Pascoe v. Washingtonville Cent. Sch. Dist., ___ F. Supp. 2d ___, 1998 WL 684583 at *6 [S.D.N.Y. Sept. 29, 1998]; Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]).

            There is no dispute that the CSE reviewed the private psychological and psychiatric evaluations (Parent Ex. C at p. 1).  Prior to the CSE meeting, the high school psychologist reviewed the private evaluation reports (Tr. pp. 1242-44) and discussed his impressions of the reports with the high school psychologist, spoke to respondent's middle school psychologist, a psychologist assigned to the CSE, the CSE Chairperson and the assistant director of pupil personnel services (assistant director) (Tr. p. 1247; see Parent Ex. C).  At the November 2005 meeting, the CSE reviewed the private psychological evaluation report's conclusions that the student had problems at respondent's school, difficulty at home and that he was diagnosed with ADHD, ODD and depressive disorder (Tr. pp. 1264, 1267; see Parent Ex. J at p. 6).  The November 2005 CSE discussed the private psychologist's conclusion that the student was "an emotionally disturbed child" (Tr. p. 579; see Parent Ex. C).  At the CSE meeting the high school psychologist stated that based on the student's academic achievement within the school and his behavior reported by the school, the student did not exhibit oppositional defiant or depressive types of behaviors (Tr. p. 1268).  The CSE also reviewed the student's diagnoses of ADHD and dysthymic disorder reported in the private psychiatric evaluation report (Tr. p. 1267; see Parent Ex. K at p. 2).  The testimony of the assistant director, high school psychologist and middle school psychologist is replete with questions about how the private evaluators arrived at their conclusions about the student (Tr. pp. 746-47, 749-50, 753-6, 758-59, 1147-48, 1213, 1216-17, 1256-57, 1290-92, 1304-05, 1323, 1328-29, 1333, 1362, 1512-14).

            The assistant director of pupil personnel services, who had been employed as a school psychologist for eight years prior to gaining employment at respondent's district (Tr. p. 445), testified that she did not agree with the private psychologist's conclusion that the student was emotionally disturbed and exhibited a high degree of distractibility, impulsivity and resistance (Tr. pp. 575-76).  The assistant director indicated that at the CSE meeting, no one familiar with the student reported that he was "unmanageable" at school, in contrast to the statement made by the private psychologist in his report (Tr. p. 734).

            The high school psychologist stated that at the time of the November 2005 CSE meeting he did not believe an additional psychological evaluation of the student was necessary because the private evaluations were "fresh" (Tr. p. 1353).  He testified that even if the private evaluators' clinical diagnoses of the student were accurate, the CSE did not agree with the conclusion that the student needed to be classified because the student did not exhibit behavior that interfered with progress in the academic, emotional and social domains (Tr. pp. 1354-55).  He further testified that the student was making progress at a level that was "relatively commensurate" with respondent's expectation (Tr. p. 1357).

            The high school psychologist conducted a "clinical interview" of the student during his visit to Family Foundation.  The interview included questions about possible depression, attention problems, anger concerns, academic achievement and the student's behavior at respondent's middle school (Tr. pp. 1253-55).  The interview revealed that the student believed he was at Family Foundation due to his behavior at home, where he described himself as "very, very difficult" (Tr. p. 1254).  The student reported that he did not exhibit the home behaviors at school and that although he "joke[d]" around at school, he did not give the teachers a "hard time" like he gave his parents (id.). 

            The student's private psychological evaluation report contained results of cognitive, academic achievement and personality testing (Parent Ex. J).  The cognitive and academic achievement test results are largely uncontested by the parties.  The disagreement with the private psychological evaluation report stems from the conclusions reached by the private evaluators regarding the student's diagnoses and their effects on the student's ability to perform in school.  In light of the facts in this case, respondent was not required to conduct its own psychological evaluation of the student (see generally, Application of a Child Suspected of Having a Disability, Appeal No. 98-80 [although school psychologist did not conduct any formal personality testing, CSE was free to rely upon personality testing conducted by private psychologist who performed earlier psychoeducational and language evaluation].

            Respondent contends that the CSE had all the information it needed to determine that petitioners' son was ineligible to receive special education services, while petitioners contend that their son should have been classified as a student with an emotional disturbance (Pet. ¶ 103).  Although the impartial hearing officer did not make an eligibility determination, I will review the CSE's determination that the student was ineligible to receive special education services as a student with an emotional disturbance.   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 educationalperformance to the extent that he or she requires special services and programs (20 U.S.C. § 1401[3][A][ii] [defining a child with a disability as one who, by reason of their disability, "needs special education and related services"]; 34 C.F.R. § 300.8[a][1] [same]; 8 NYCRR 200.1[zz] [defining a student with a disability as one who "requires special services and programs"]; see J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65-66 [2d Cir. 2000];  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. § 300.8[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 he or she requires special education (seeN.Y. Educ. Law 4401[1]).

            Petitioners contend that their son should have been classified as a student with an emotional disturbance based upon, among other things, recommendations of their private psychologist and psychiatrist.  As noted above, petitioners' private psychologist opined that the student met the criteria for classification as a student with an emotional disturbance (Dist. Ex. J at p. 6; Tr. p. 58).  In addition, petitioners' private psychiatrist reported that the student had an inability to build or maintain satisfactory interpersonal relationships with peers and teachers as well as demonstrated inappropriate types of behavior or feelings under normal circumstances (Parent Ex. K at p. 2).  The psychiatric report also indicated that the student had a "generally pervasive mood of unhappiness or depression which he acts out as do adolescents his age" (id.).  Therefore, petitioners essentially contend that their son met the criteria of emotional disturbance under second, third and fourth characteristics of emotional disturbance (8 NYCRR 200.1[zz][4][ii], [iii], and [iv]; see 34 C.F.R. § 300.8[c][4][i][B], [C] and [D]).

            The second characteristic within the definition of emotional disturbance is that the student must have an "an inability to build or maintain satisfactory interpersonal relationships with peers and teachers" for a long period of time and to a marked degree that adversely affects his educational performance (8 NYCRR 200.1[zz][4][ii]; see 34 C.F.R. § 300.8[c][4][i][B]).  The high school psychologist, who was at the student's November 17, 2005 CSE meeting (Parent Ex. C), testified that he was aware of the student's classroom behaviors referenced on the disciplinary referrals at the time of the CSE review (Tr. p. 1409).  The middle school dean, who was at the student's November 17, 2005 CSE meeting (Parent Ex. C), characterized the student as exhibiting "typical adolescent" behavior when questioned about the disciplinary referrals from sixth grade (Tr. p. 874).  He described the student as "affable, jovial, likeable" and "easy to get along with," a "typical adolescent" (Tr. p. 867). 

            The middle school dean and guidance counselor testified that while in respondent's middle school, the student had friends and was liked by his peers (Tr. pp. 868-69, 1009-10).  The dean reported that the student had a group of friends, and every day at lunch sat with six or seven other students (Tr. p. 868).  The dean opined that the student socialized with these students outside of school and that the student seemed to have a "group of people he belonged with" (Tr. pp. 868-69).  The middle school guidance counselor stated that the student had at least two friends who were "nice boys," with whom the student walked in the halls and ate lunch (Tr. p. 1009).  The student's interaction with his peers was characterized as "typical adolescent boy stuff," and the student appeared to be immersed in that peer group (Tr. p. 869).  The student reported to the high school psychologist that his social relationships in school were good (Tr. pp. 1253-54).

            The middle school dean testified that he had known the student since he entered sixth grade (Tr. p. 867).  He testified that he had a "solid" relationship with the student and that for the most part the student's relationship with his teachers was average (Tr. pp. 868, 871).  The dean reported that he and the student had an excellent rapport and that the student responded well to his praise and guidance (Tr. p. 868).  He opined that adults in the building liked the student because of his good sense of humor (Tr. pp 870-71).  I find that the student did not have an inability to build or maintain satisfactory interpersonal relationships with peers and teachers for a long period of time and to a marked degree that adversely affects his educational performance (8 NYCRR 200.1[zz][4][ii]). 

            The third characteristic within the definition of emotional disturbance is that the student must have "inappropriate types of behavior or feelings under normal circumstances" for a long period of time and to a marked degree that adversely affects his educational performance (8 NYCRR 200.1[zz][4][iii]; see 34 C.F.R. § 300.8[c][4][i][C]).  The high school psychologist, who was at the student's November 17, 2005 CSE meeting (Parent Ex. C), testified that he was aware of the student's classroom behaviors referenced on the disciplinary referrals at the time of the CSE review (Tr. p. 1407-09).  The middle school dean, who was at the student's November 17, 2005 CSE meeting (Parent Ex. C), characterized the student as exhibiting "typical adolescent" behavior when questioned about the disciplinary referrals from sixth grade (Tr. p. 874).    Reasons for disciplinary referrals during the 2004-05 school year included disruptive and rude behavior in the classroom, turning off the power switch in Technology class, drawing an inappropriate picture on an overhead projector, and attempting to expectorate on another student (Parent Ex. R at pp. 11, 12, 15, 21, 22, 23, 26).  These behaviors were described as "attention-seeking," "mischievous," and "impulsive" (Tr. p. 877, 1394-95).  The middle school guidance counselor opined that the student liked to act "silly" and that a lot of the disciplinary referrals were for what she characterized as attention seeking behaviors (Tr. pp. 1076-77).  The student, in a conversation with the high school psychologist, characterized his behaviors in school as "jokester" and "fooling around" behaviors (Tr. pp. 1253, 1255).  The high school psychologist concluded that the behaviors contained in the student's disciplinary referrals reflected attention seeking behavior and not an emotional problem (Tr. pp. 1495-96).  The middle school psychologist opined that the behaviors described in the disciplinary referrals were typical of general education students (Tr. p. 1197).  I find that the student did not have inappropriate types of behavior or feelings under normal circumstances for a long period of time and to a marked degree that adversely affects his educational performance (8 NYCRR 200.1[zz][4][iii]; see 34 C.F.R. § 300.8[c][4][i][C]).

            The fourth characteristic within the definition of emotional disturbance is that the student must have "a generally pervasive mood of unhappiness or depression" for a long period of time and to a marked degree that adversely affects his educational performance (8 NYCRR 200.1[zz][4][iv]; see 34 C.F.R. § 300.8[c][4][i][D]).  The high school psychologist's 30-40 minute clinical interview of the student conducted after the classroom observation at Family Foundation included review of the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition, Text Revision (DSM-IV-TR) diagnostic criteria to assess if the student displayed any characteristics of depression (Tr. p. 1253).  The high school psychologist testified that he did not "have any sense that [the student] was depressed" (Tr. pp. 1253, 1265).  At the November 2005 CSE meeting, the dean reported that the student appeared happy (Tr. pp. 927-28; see Parent Ex. C).  The middle school guidance counselor testified that she did not see anything in the student to support the claim that he had an emotional disturbance because he did not appear to be depressed (Tr. pp. 1020-21).  I find that the student did not have a generally pervasive mood of unhappiness or depression for a long period of time and to a marked degree that adversely affects his educational performance (8 NYCRR 200.1[zz][4][iv]; see 34 C.F.R. § 300.8[c][4][i][D]).

            The assistant director and the high school psychologist testified that there was enough information presented to the CSE meeting to support not classifying the student and the CSE did not need any additional information to make a decision about the student's eligibility (Tr. pp. 522, 1488-89).  The assistant director explained that the CSE's decision was based on the discussions about the student's academic performance and that the behaviors as described by the parent and school were not viewed to be significantly affecting his ability to learn (Tr. p. 523).  The assistant director stated the student was "learning and performing," that he had relationships with his peers, and that nothing in the discussion led the CSE to believe that he needed special education services (id.).  In fact, although the student met with the middle school guidance counselor on a regular basis, the student was not ever referred for building level services such as the IST or counseling with the middle school psychologist (Tr. pp. 561, 564, 741-42, 1148-49).The middle school dean testified that the number of in and out of school suspensions the student received during middle school did not warrant a classification as a student with an emotional disturbance (Tr. p. 918).  He also stated that based on his experience and his interactions with the student, he did not see anything to indicate that the student suffered from any type of an emotional disorder (Tr. p. 985). 

            The high school psychologist concluded that in looking at what actually occurred in respondent's school, the student's behavioral manifestations were not exhibited to the point where he couldn't be "contained" (Tr. p. 1281).  He concluded that the information about the student presented at the CSE did not support classification and that the student's profile was similar to many non-classified students who attended respondent's school (Tr. p. 1341-42, 1453-54).  In addition, at the November 2005 meeting the CSE described the non-special education support services that were available to the student had he attended respondent's high school (Tr. pp. 1282-86).

            The private psychologist testified that he spent approximately seven to nine hours with the student during the evaluation (Tr. pp. 46-47, 1630), and the private psychiatrist examined the student for "approximately an hour" (Tr. p. 208).  The private psychologist testified that he did not have contact with any of respondent's staff during his evaluation process (Tr. p. 74).  The private psychiatrist also testified that he did not contact with respondent's staff during his evaluation process (Tr. p. 212).  Although the private psychologist and psychiatrist recommended that the student be classified as a student with an emotional disturbance, I am persuaded by the testimony of the middle school staff who knew the student throughout middle school and the high school psychologist who reviewed the middle school record and met with the student, that the student does not exhibit an emotional disturbance that requires special education.  I therefore concur with the November 2005 CSE's determination that the student is not eligible for classification as a student with an emotional disturbance.  The record did not contain any evidence or testimony to demonstrate that the student exhibited any one of the five characteristics of emotional disturbance over a long period of time or to a marked degree, nor does the record demonstrate that the student's emotional condition adversely affected his educational performance to the extent that he required special education services or programs (see 20 U.S.C. § 1401[3][A][ii]; see also 34 C.F.R. § 300.8[a][1]; 8 NYCRR 200.1[zz]).  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]). 

            I note that even if I had found that the student is eligible for special education programs and services, I concur with the impartial hearing officer that petitioners failed to demonstrate that the student required a residential placement in order to benefit from his educational program (see IHO Decision, pp. 33-34; see also Application of a Child with a Disability, Appeal No. 06-024).   Additionally, I concur with the finding of the impartial hearing officer that the program offered by Family Foundation was not appropriate (IHO Decision, pp. 32-33).  The record suggests that while attending Family Foundation the student was seen by a psychologist once per week between October and December 2005 (Tr. p. 393); however, the social worker/family counselor from Family Foundation testified that the student did not receive ongoing counseling by a certified, licensed psychologist (Tr. pp. 98, 126).  The record does not elaborate on the credentials of the psychologist who provided the student's fall 2005 therapy, nor does it provide any details regarding the therapy the student received.  Other forms of counseling the student received were "lunch table" counseling sessions conducted by the family leader who is not certified in either school counseling or psychology (Tr. pp. 376-77, 382, 391), weekly peer group counseling (Tr. p. 101), and weekly Overeaters Anonymous sessions (Tr. p. 133).  Provided that the student's primary difficulty was emotional in nature, I find that Family Foundation did not offer him consistent counseling services provided by licensed staff.  In addition, in September 2005, Family Foundation employed the use of a month long work sanction with the student, during which time he did not attend classes (Tr. pp. 391-92).  The student's fall 2005 report card reflected "incomplete" grades in four classes (Dist. Ex. 1).  I find this behavioral modification technique deprived the student of educational opportunity and caused him to fall behind in his coursework.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it is inconsistent with this decision.