I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their son's tuition at the Westfield Day School (Westfield) for the 2022-23 school year.  The district cross-appeals from the IHO's finding that Westfield was an appropriate unilateral placement.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student has received numerous diagnoses throughout in his educational history, which, relevant to the school year in question, included attention deficit hyperactivity disorder (ADHD), autism spectrum disorder, generalized anxiety disorder, social pragmatic communication disorder, and adjustment disorder with mixed disturbance of emotions and conduct (Parent Exs. G; H at p. 4; I at p. 36; J at p. 1; Dist. Exs. 11 at p. 4; 19 at p. 14).

The student was initially found eligible for special education in first grade (2013) as a student with an other health impairment (Dist. Ex. 11 at pp. 2, 3).[1]  Upon declassification of the student in February 2019, the CSE recommended he receive support services for the 2019-20 school year (seventh grade) which consisted of the following: daily 40-minute direct consultant teacher services in English language arts (ELA); alternate day 40-minute sessions of 5:1 resource room; and one 30-minute session per week of individual psychological counseling, all set to begin in September 2019 (Dist. Ex. 1 at pp. 1, 4-5).[2]^, [3]

Subsequently, the student underwent a central auditory processing reevaluation in June 2019, in which he was found to have weaknesses in phonological awareness and dichotic listening, and a neuropsychological evaluation in September 2019, in which he was found to have an anxiety disorder and language disorder (Parent Exs. D at p. 9; E at p. 4).

At a meeting held on November 18, 2019, to determine the student's eligibility for services under section 504 of the Rehabilitation Act of 1973 (section 504), 29 U.S.C. § 794(a), the district developed a 504 plan for the student for the 2020-21 school year (eighth grade) (see Dist. Ex. 3).  The November 2019 504 committee determined that the student had an impairment in learning and needed more time to process information and read text and recommended the student receive two 30-minute sessions per month of group psychological counseling services and accommodations of access to study guides, additional time for processing, assignments broken down into smaller and manageable parts, checks for understanding, preferential seating, a copy of class notes, support for organizational skills, use of mapping to plan written tasks, and one 15-minute monthly indirect speech-language consultation (id. at pp. 2-3).  The student was also recommended for the following testing accommodations: check for understanding of directions, flexible setting, on-task focusing prompts, extended time, tests administered in location with minimal distractions, and use of break periods (id. at p. 3).

Next, on March 15, 2021, a 504 committee convened to review the student's progress and develop a 504 plan for the 2021-22 school year (ninth grade) (see Dist. Ex. 5).  The same program and testing accommodations were recommended for the student for the 2021-22 school year (compare Dist. Ex. 3 at p. 3, with Dist. Ex. 5 at p. 3).

The district conducted a psychological evaluation of the student in August 2021 (Parent Ex. F).[4]

On March 15, 2022, the parents referred the student to the CSE to determine his eligibility for special education services (Parent Ex. X at p. 1).  In particular, the parents stated that the student's ADHD and anxiety were "negatively affecting his ability to learn" and his 504 plan did not meet his needs (id.).

On April 5, 2022, the 504 committee convened and developed a 504 plan for the student for the 2022-23 school year (tenth grade) (see generally Dist. Ex. 7).  The 504 committee continued to recommend continuation of the accommodations in the March 2021 504 committee and added program accommodations of providing the student with templates for writing assignments and a revision checklist for writing assignments (compare Dist. Ex. 5 at pp. 2-3, with Dist. Ex. 7 at pp. 3-4).  In addition, the 504 committee recommended two 20-minute sessions per month of a counseling consultation for school personnel (Dist. Ex. 7 at p. 4).[5] The 504 meeting information summary noted that the student's mother had requested an initial CSE meeting, which would address upcoming evaluations and determine the student's eligibility for special education (id. at p. 2).

In April 2022, the district conducted a social and educational history and obtained a psychiatric evaluation of the student, and, in May 2022, the district conducted a classroom observation of the student (Dist. Exs. 9-10; Parent Ex. H).  The parents obtained a private neuropsychological evaluation of the student, which was conducted in April 2022 (Parent Ex. I).

On June 8, 2022, the CSE convened for an initial eligibility determination meeting but found it had insufficient information to determine if the student met the "criteria to be classified as a student with a disability and eligible for special education services" (Dist. Ex. 18 at p. 1).  Therefore, the CSE requested additional evaluations of a psychiatric evaluation and neuropsychological evaluation to determine the student's eligibility for special education services (id. at p. 2).  The parents were not in agreement with the district's recommendation but consented to the additional evaluations (Parent Ex. BB at p. 2; Dist. Ex. 18 at p. 2).

From July 27, 2022 to August 10, 2022 the student attended a partial hospital program (Parent Ex. J).

The district obtained another psychiatric evaluation of the student, which was memorialized in a report dated August 9, 2022 (Dist. Ex. 11)

On August 16, 2022, the parents sent a letter to the district stating that the student had a disability and required an IEP for the 2022-23 school year and further notified the district of their intent to unilaterally place the student at Westfield for the 2022-23 school year (Parent Ex. BB at pp. 1-2).[6]

On September 1, 2022, the parents entered into an enrollment agreement with Westfield for the student's enrollment for the 2022-23 school year (Parent Ex. M).

The hearing record includes a letter to the parents from the district dated September 7, 2022, which stated that a CSE meeting took place that day "to consider the programmatic concerns [the parents] raised in [their] August 2022 letter" (Dist. Ex. 13).  The letter documented that the CSE requested information from the parents regarding the student's partial hospitalization (id.).  In addition, according to the letter, the district deemed the parents' unilateral placement of the student to reflect the parents' choice "to forgo the referral process" (id.).

A. Due Process Complaint Notice

In a due process complaint notice dated January 12, 2023, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year (see generally Parent Ex. A).  In particular, the parents asserted that, despite recommendations from outside evaluators, the district refused to find the student eligible for special education services or develop an IEP and instead suggested further evaluations (id. at pp. 3-5).  The parents claimed that the prior written notice with respect to the June 2022 CSE meeting failed to accurately describe the discussions at the meeting and incorrectly stated that the parents sought classification of the student due to his grades when "they ha[d] always communicated to the [d]istrict, they were seeking to have [the student] classified as a result of his severe emotional distress" (id. at p. 5).  They claimed that the district failed to evaluate the student prior to the 2022-23 school year (id. at p. 6).  The parents stated that another meeting was held on September 7, 2022 to discuss the student's updated medical information and needs; however, the district failed to classify the student as a student with a disability (id.).

Next, the parents alleged that the student reportedly made meaningful progress at Westfield and was successful in the "intensive small-class program there, where he receive[d] appropriate instruction and behavioral support" (Parent Ex. A at p. 6).  Furthermore, the parents alleged that equitable considerations supported their claim for tuition reimbursement (id.).

As relief, the parents requested reimbursement for tuition and related expenses at Westfield for the 2022-23 school year and for the district provide "special education transportation" or be ordered to fund the cost of transportation if busing was not provided (Parent Ex. A at p. 6).

B. Impartial Hearing Officer Decision

Prehearing conferences were held on November 21, 2023 and December 14, 2023 "off the record" (IHO Decision at p. 2).[7]  An impartial hearing convened on March 5, 2024 and concluded on September 27, 2024 after six days of proceedings (Tr. pp. 1-958).  In a decision dated December 17, 2024, the IHO found that the district did not deny the student with a FAPE for the 2022-23 school year, that the unilateral placement was appropriate, and that equitable considerations did not favor an award of tuition reimbursement to the parents (IHO Decision at pp. 9, 16, 22).[8]

The IHO found that, for the 2022-23 school year, the district proved based on a preponderance of the evidence that the "student's needs could be addressed in a general education setting through the use of accommodations and strategies without the additional support of special education services" (IHO Decision at p. 10).  The IHO also found that the district's decision not to classify the student was based on appropriate evaluative information (id.).  The IHO determined that the student did not have a "specific learning disability" because he "achieved academic scores that were appropriate for the student's age and that [he] met state-approved grade-level standards when provided with learning experiences and instruction appropriate for [his] age" (id.).  Furthermore, the IHO found the district's witnesses reliable and credible (id. at pp. 10-16).

Next, the IHO found that the Westfield witnesses "provided just enough credible evidence to prove by just a preponderance of the evidence that the program at [Westfield] [wa]s designed to meet the unique educational needs of this student" (IHO Decision at p. 18).  With respect to equitable considerations, the IHO found that the parents did not fully cooperate with and thwarted the district during the evaluation process because, among other things, "the student's mother began exploring private schools while delaying the provision of her independent evaluation and failing to advise the [d]istrict of the [s]tudent's enrollment [at Westfield]" (id. at pp. 19-20).  Consequently, based upon his finding that the district offered the student a FAPE, the IHO denied the parents' request for tuition reimbursement (id. at p. 22).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred in finding that the district offered the student a FAPE and that equitable considerations did not favor the parents.  More particularly,  the parents assert that there was no claim that the student had a specific learning disability, and that the IHO failed to consider whether the student could have been classified under one of the other 12 categories of eligibility set forth in the State regulations.  Further, the parents assert that the IHO erred in failing to determine whether the student's disability adversely affected his educational performance.  The parents claim that the IHO's decision was conclusory and not "reasoned [or] supported by the record."  The parents argue that the IHO failed to make findings about several issues raised in the due process complaint notice and post-hearing brief, all of which were relevant to a finding whether the student was offered a FAPE, including with respect to behavioral incidents which occurred during the previous school year; procedural violations committed by the district including the district's failure to timely convene the CSE, to sufficiently evaluate the student, to make timely decisions, and to provide documents in the parents' native language; transportation issues; and predetermination.[9]

Lastly, the parents assert that equitable considerations support their claim for tuition reimbursement.  They argue that they were cooperative with the district, open minded to the district's recommendations, and provided timely notice of their intent to unilaterally place the student at Westfield.  Ultimately, the parents request a reversal of the IHO's decision, that the student be classified as a student with a disability, and that they be award tuition reimbursement and transportation costs for the 2022-23 school year.

In an answer and cross-appeal, the district argues that the IHO correctly found that the student's needs could be addressed in general education with accommodations and that the student did not need special education services.  In addition, the district asserts that the IHO properly found that equitable considerations precluded an award of tuition reimbursement.  The district argues in the cross-appeal, that the IHO incorrectly determined that Westfield was an appropriate unilateral placement.  The district contends that the hearing record lacks sufficient evidence to demonstrate how Westfield adapted its program to meet the student's unique needs.  The district asserts that testimony by the Westfield's representative was generalized and lacked specific information about the student's needs.  The district asserts that the student did not make progress at Westfield and that the placement was overly restrictive, limiting the student's interaction with non-disabled peers.  Further, the district acknowledges that it served the notice of intention to cross-appeal in an untimely manner but argues that there is no prejudice to the parents and requests consideration of the cross-appeal.  In an answer to the cross-appeal, the parents assert that, because the notice of intention to cross-appeal was untimely, the cross-appeal should be dismissed.[10]

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[11]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. Timing of the CSE Meetings

Upon written request by a student's parent, a district must initiate an individual evaluation of a student (see Educ. Law § 4401-a[1], [3]; 8 NYCRR 200.4[a][1][i]; [a][2][ii]-[iv]; [b]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b]).  Specifically, once a referral is received by the CSE chairperson, the chairperson must immediately provide the parents with prior written notice, including a description of the proposed evaluation or reevaluation and the uses to be made of the information (8 NYCRR 200.4[a][6]; 200.5[a][5]).  After parental consent has been obtained by a district, the "initial individual evaluation shall be completed within 60 days of receipt of consent" (8 NYCRR 200.4[b]; see also 8 NYCRR 200.4[b][7]).  "Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability . . . the board of education shall arrange for appropriate special programs and services" (8 NYCRR 200.4[e][1]).[12]

As noted above, the parents referred the student to the CSE by letter dated March 15, 2022 (Parent Ex. X at p. 1).  The parents provided signed consent for the district to conduct its evaluation of the no later than March 22, 2022 (see id. at pp. 2-3).  Accordingly, the district had until approximately the end of June 2022 to make an eligibility determination and, if necessary, arrange for special programs and services for the student (see 8 NYCRR 200.4[e][1]).

A CSE convened on June 8, 2022, for an initial eligibility determination meeting and found it had insufficient information to determine if the student met the "criteria to be classified as a student with a disability and eligible for special education services" (Dist. Ex. 18 at p. 1).  During the June 2022 CSE meeting, the committee recommended that a psychiatric evaluation be "redone to determine the appropriate level of social emotional support that [the student] may need and a [n]europsychological [evaluation be completed] to determine the appropriateness of the diagnosis made by [the] private evaluator" and thereby determine whether the student met the eligibility criteria for special education services (Tr. pp. 57, 94-95, 283; Dist. Ex. 18 at pp. 1-2).[13]  Although both the director of special education and school psychologist later testified during the impartial hearing that, based upon the information presented at the June 2022 CSE meeting, the student was ineligible and did not meet the requirements for an IEP (Tr. pp. 94-95, 283-84), the June 8, 2022 prior written notice reflects that the CSE did not have enough information to make that determination (Dist. Ex. 18 at p. 1).  The prior written noticed indicated that, due to the insufficient information, at that time "eligibility [wa]s not determined," but that it would "reconvene to discuss" new evaluation upon their completion (id. at pp. 1-2).

The evidence then shows that consistent with the plan set forth in the prior written notice, the district obtained additional evaluations of the student.  The psychiatric evaluation report was dated August 9, 2022 but the neuropsychological evaluation was delayed and, ultimately, was not conducted until March 2023 (see Tr. pp. 60-63, 65; see Dist. Exs. 11, 19).  Although there is no prior written notice or meeting minutes included in the hearing record, the evidence indicates that a CSE meeting was conducted on September 7, 2022 (Tr. p. 810; Dist. Ex. 13).  The September 7th meeting was held in response to the parents' August 16, 2022 letter regarding their disagreement with the CSE's determination not to offer the student an IEP and intent to place the student at Westfield for the 2022-23 school year (Parent Ex. BB at pp. 1-2; Dist. Ex. 13).  In a letter dated September 7, 2022 the director memorialized the meeting held that day and noted that the parents shared that the student had recently been hospitalized in a program for "[e]motionally [d]isturbed" students for ten days (Dist. Ex. 13).[14]  The director requested that the parents provide updated information to the CSE regarding the hospitalization and provided the parents forms to sign for the district to obtain the student's records from Westfield and the treating hospital (Dist. Exs. 13; 14 at pp. 1-2).  Further, the director stated that the requested "information [was] imperative to the CSE's ability to expeditiously review [the student's] current present levels of performance and needs, as well as to make informed and appropriate decisions" (Dist. Ex. 13).  The September 7, 2022 letter documented the district's position that, because the parents unilaterally placed the student, they had "chosen to forego the referral process" (id.).  Accordingly, it appears that the September 2022 CSE also did not make a determination regarding the student's eligibility.

Where a district fails to adhere to the requisite processes and timelines for evaluating a student and creating an educational program post-referral, relief for such a procedural violation of the IDEA is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; see A.H. v. New York City Dep't of Educ., 394 Fed. App'x 718, 720 [2d Cir. Aug. 16, 2010]; Jusino v. New York City Dep't of Educ., 2016 WL 9649880, at *6 [E.D.N.Y. Aug. 8, 2016], aff'd 700 Fed. App'x 25 [2d Cir. July 7, 2017]; A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 688 [E.D.N.Y. 2012], aff'd, 513 Fed. App'x 95 [2d Cir. Mar. 12, 2013]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 300 [S.D.N.Y. 2010]; M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 501 [S.D.N.Y. 2008]; Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 279 [D. Conn. 2002]).  Yet, if the information before the CSEs would not have warranted a finding that the student was eligible for special education, then the district could not be said to have deprived the student of a FAPE or educational benefits (see Burnett v. San Mateo Foster City Sch. Dist., 739 Fed. Appx. 870, 872 [9th Cir. 2018] ["When a student is ineligible for special education there can be no loss of educational opportunities"]).  Accordingly, the formative inquiry in this matter is whether the student met the criteria for eligibility.  It is to that issue that I now turn.

B. June 2022 CSE Meeting—Eligibility for Special Education

The IDEA defines a "child with a disability" as a child with specific physical, mental, or emotional conditions, including a learning disability, "who, by reason thereof, needs special education and related services" (20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1]; see 34 CFR 300.308[a][1]; 8 NYCRR 200.1[zz]).  Regulations set forth 13 categories of disability, as follows: (1) autism; (2) deafness; (3) deaf-blindness; (4) emotional disability; (5) hearing impairment; (6) learning disability; (7) intellectual disability; (8) multiple disabilities; (9) orthopedic impairment; (10) other health-impairment; (11) speech or language impairment; (12) traumatic brain injury; and (13) visual Impairment including blindness (8 NYCRR 200.1[zz] [1]-[13]; see 34 CFR 300.8[c] [1]-[13]).

Neither the IHO or the parties have set forth with clarity what categories of eligibility the CSEs considered or should have considered.  Nevertheless, the IHO appeared to incorrectly limit his review of the student's eligibility to the specific learning disability category and did not consider classification of the student under other relevant categories, which was error especially in light of the fact that the due process complaint notice alleged that the parents were seeking to have the student "classified as a result of his severe emotional distress" (Parent Ex. A at p. 5).[15]

Although complaining that the IHO incorrectly failed to consider the correct disability categories when conducting his analysis, the parents' argument in this forum suffers the from the same lack of clarity of which they accuse the IHO because the parents also do not specify which educational disability categories they believe the IHO should have considered based on the evidence  in the hearing record.  Based upon my review of the entire hearing record and arguments made by the parents, it appears that the most relevant disability categories are emotional disability and other health impairment.

1. Emotional Disability

I will first address whether the CSE should have found the student eligible for special education services as a student with an emotional disability.

A student with an emotional disability must meet one or more of the following five characteristics:

(A)       An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B)       An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C)       Inappropriate types of behavior or feelings under normal circumstances.

(D)       A general pervasive mood of unhappiness or depression.

(E)       A tendency to develop physical symptoms or fears associated with personal or school problems.

(34 CFR 300.8[c][4][i]; see 8 NYCRR 200.1[zz][4]).  Additionally, the student must exhibit one or more of the five characteristics over a long period of time and to a marked degree that adversely affects the student's educational performance (id.).  While emotional disturbance includes schizophrenia, the term does not apply to students who are socially maladjusted, unless it is determined that they otherwise meet the criteria above (34 CFR 200.8[c][4][ii]; 8 NYCRR 200.1[zz][4]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 398 [N.D.N.Y. 2004]).

a. Inability to Learn

The June 2022 CSE considered the following information during the meeting: psychiatric evaluation conducted on April 7, 2022 and April 9, 2022; psychological evaluation dated August 11, 2021 which included test results from the Wechsler Individual Achievement Test - 3rd Edition (WIAT-III), Wechsler Intelligence Scale for Children - 5th Edition (WISC-V), Piers-Harris 3 (PH-3), Behavior Rating Inventory of Executive Functioning - 2nd Edition (BRIEF-2), Achievement Motivation Profile-Junior (AMP); classroom observation on May 2, 2022; report card of final grades for first three marking periods and current grades for the fourth marking period for the 2021-22 school year; referral letter dated May 14, 2021; social history on June 21, 2021; second social history received in April 2022; medical records review dated March 25, 2022, with diagnosis of ADHD on March 21, 2022; private neuropsychological evaluation dated May 17, 2022; current 504 Plan; and educational intervention history (see Parent Exs. F, H-I; see Dist. Exs. 6-7, 9-10; Dist. Ex. 18 at p. 1).

The August 11, 2021 psychoeducational evaluation was conducted by the district "to assess [the student's] current cognitive and social-emotional functioning" as part of an initial referral for special education services (Parent Ex. F at p. 1).  According to the report generated as a result of the evaluation, the student's overall performance on cognitive testing fell in the average range, which was consistent with prior test results obtained in November 2013, April 2018, and November 2018 (id. at pp. 1-3).  The evaluation report indicated the student's verbal comprehension, visual spatial, and fluid reasoning scores were similar to other children his age (id. at pp. 3-6).  With regard to working memory, the student's performance on the letter-number sequencing subtest of the WISC-V showed that he was slightly below other students his age and suggested "somewhat weak sequential processing, mental manipulation, and attention" (id. at p. 7).  The evaluation report indicated that the student's attained a score on the processing speed index that fell in the high average range (id. at pp. 3, 7).  The student's general ability index (GAI) score fell in the average range, and was similar to the student's FSIQ which, according to the school psychologist indicated that reducing the impact of working memory and processing speed "resulted in little or no difference on [the student's] overall performance" (id.).  In connection with the student's academic functioning, the student was found to be consistently in the average range in all academic areas (id. at pp. 8-11).  The school psychologist noted that with respect to reading comprehension and pseudoword decoding the student scored "on the cusp" of the average and low average range (id. at p. 11).

In terms of social/emotional functioning, the evaluation report stated that the student's completion of the Piers-Harris Scale yielded a total score of 39 that was in the low range (Dist. Ex. F at p. 18).  The student scored in the average range on the freedom from anxiety, happiness and satisfaction, and social acceptance domain scales; in the low average range on the physical attributes and appearance scale; and the low range on the behavioral adjustment and intellectual and school status scales (id. at pp. 11-12).  On the behavioral adjustment scale the student indicated that he liked school but felt that he caused trouble for his parents and was unsure that he could meet the expectations placed on him (id. at p. 12).  On the intellectual and school status scale the student indicated that he had trouble finishing his homework, daydreamed in class, had trouble listening in class, and forgot what he learned (id.).  However, the evaluation report also indicated that the student reported that he participated in school, felt that he was smart, was an important member of the class, and could give a good report in front of the class (id.).  The student's self-report on the BRIEF-2 indicated he had difficulty with some aspects of executive function including resisting impulses; awareness of his functioning in social settings; adjusting well to changes in the environment, people, plans, or demands; reacting to events appropriately; beginning tasks, activities, and problem-solving approaches; sustaining working memory; and planning and organizing an approach to problem solving (id. at pp. 18-19).

The June 2022 CSE also considered the April 2022 psychiatric evaluation conducted at the direction of the district which consisted of a parent interview, staff consultation, and evaluation of the student (see Parent Ex. H).  The evaluator reported that the student "presented as a despondent and easily annoyed young man who was unwilling to share details of his current thinking or concerns" (id. at p. 3).  The evaluator noted that the student demonstrated significant levels of stress exacerbated by high school academic requirements and expectations (id.).  He indicated that during his meeting with the student the student presented as "hostile and withholding, often questioning the point of being in school" (id. at p. 4).  Due to the student's lack of engagement in the evaluation, the psychiatrist reported that it was not an "optimal examination" (id.).

Additionally, the June 2022 CSE considered an April 2022 private neuropsychological evaluation of the student (see generally Parent Ex. I).[16]  Similar to the August 2021 psychological evaluation, the private psychologist administered the WISC-V, which this time yielded a FSIQ in the high average range (id. at p. 9).  The results on the WIAT-4 varied widely in reading from very low in pseudoword decoding to the average range in word reading, reading comprehension, and spelling; and the student scored in the high average range in math problem solving and numerical operations; and extremely high range for math fluency (id. at pp. 13-14).  However, the evaluator indicated that, based on an ability-achievement discrepancy analysis, all of the student's academic skills were significantly below his aptitude (id. at pp. 16, 22).  Based on her assessment of the student's executive functioning skills, the evaluator reported that the student presented with attention deficits including variability in attention span, internal and external distractibility, impulsivity, and low frustration tolerance (id. at p. 30).  The student reported that his problems ""seriously affect[ed]" his functioning "very frequently" in school and often in social and home settings (id. at pp. 27, 30).  The concerns highlighted by the psychologist based on the student's scores on the BRIEF-2 were similar to those previously discussed in the August 2021 evaluation and related to the student's inhibition, self-monitoring, emotional control, initiation of tasks, working memory, organization, task monitoring, and planning (id. at pp. 28-29).  Again, based upon these results, the psychologist found that ADHD was "strongly indicated" (id. at p. 28).  Lastly, the psychologist administered the Autism Spectrum Rating Scales (ASRS) to the parents and teachers, which resulted in a diagnosis of autism spectrum disorder, level 1 without intellectual impairment (id. at p. 36).[17]  Additionally, the psychologist continued to diagnose the student with ADHD, inattentive/overfocused type, and offered a new diagnosis of social pragmatic communication disorder (id.).

The June 2022 CSE also considered information from the April 2022 504 meeting and the resultant 504 plan (see generally Dist. Ex. 7).  During the April 2022 504 meeting the parents presented information from the student's pediatrician that the student was "being hel[d] back academically and socially by his ADHD and anxiety" (Parent Ex. G; Dist. Ex. 7 at p. 1).  The student's teachers discussed the student's academic functioning and specifically his English teacher reported that the student struggled in English and that he sometimes came for extra help but was resistant to seek help (Parent Ex. U at pp. 1-6; Dist. Ex. 7 at p. 1).  The English teacher told the committee that the student did not believe he needed to take class notes because they were provided to him but that she reminded him to try to take his own notes (Dist. Ex. 7 at p. 1).  The English teacher reported that there were times when she needed to refocus the student, and he would sit in the front of the class (id.).  It was reported that in Biology the student had a grade of 92 and completed his homework although it was messy, that he did not seek extra help, and he needed "many refocusing prompts" during class and labs (id.).  He was noted to be distracted in class resulting in him not completing his labs (id.).  Similarly, in Spanish the student completed his homework albeit messy, and the student was unable to follow directions either written or oral and needed them repeated several times during and after class (id.).  It was noted that the student perseverated in Spanish class (id.).  In writing, the student's average was an 83, he submitted his assignments late and would benefit from after school help (id.).[18]  With respect to global studies, the feedback was that the student had trouble concentrating and accurately completing his work but did respond to teacher prompts (id.).  According to the 504 plan, in geometry the student had an average of 88-90 and although he completed his homework it was often illegible (id. at pp. 1-2).  It was also noted that in geometry the student needed refocusing and was easily distracted by others (id. at p. 2).  The student performed great in band (id.).

Moreover, the June 2022 CSE also had before it a May 2, 2022 classroom observation conducted by the school psychologist in English class which was the student's most difficult class (Tr. p. 161; see Dist. Ex. 10).  With regard to the student's classroom management needs, the school psychologist noted the student was not distractible, did not demonstrate impulsive behaviors, was not disruptive, and was able to keep up with the class and switch tasks (Dist. Ex. 10 at pp. 1, 3).  Observation of the student's social functioning in the classroom demonstrated that the student did not seek assistance from the teacher, and did not engage in attention-seeking behaviors (id. at pp. 1-2).  There was no observed physical disability of the student, and he did not exhibit a high activity level (id. at p. 2).  Furthermore, the school psychologist did not observe difficulties with the student's expressive language nor any difficulty with intelligibility or articulation (id.).  The student was noted to neatly set up his materials for class (id. at pp. 2-3).  According to the school psychologist, there was no observed distress or agitation, and the teacher did not note that the student was off task (id. at pp. 2-4).  Also, the student was prepared with his work for the group discussion (id. at p. 2).  Lastly, the student was observed to pack up his materials and waited to be dismissed from class by the teacher (id. at p. 4).

During the student's ninth grade year there were noted instances where he had difficulty in a few classes.  For example, on November 5, 2021, the student's technology teacher emailed the parents about his classwork and the fact that the student was failing because his work was missing or late and his work was "not to the best of his ability" (Parent Ex. T at p. 1).  On February 3, 2022, the student's English teacher emailed the parents that the student was having difficulty with a poetry assessment and received a failing grade of 56 which the teacher offered the student the opportunity to revise over the weekend which he did complete (Parent Ex. U at pp. 1-4).  Additionally, on February 15, 2022, the parents emailed the student's school guidance counselor about academic concerns for the student (see Parent Ex. V).  The parent stated that during a parent-teacher conference in December 2021 the teachers' shared concerns about the student's reading and writing (id. at p. 1).  The parents also detailed instances of the student having difficulties with finishing assignments (Parent Exs. V at pp. 1-2; W at pp. 1-2).  The email noted that the parents had further discussions with the student's English teacher about the student's performance, that the English teacher guided the student to revise essays to improve both his writing and grade, and the student was practicing taking notes in class (see Parent Ex. U).

The June 2022 CSE also reviewed the student's report card for the first three marking periods of the 2021-22 school year as well as "current grades for the fourth marking period" (Dist. Ex. 18 at p. 1).  The third marking period revealed that the student was passing all classes with a 71 in English; passing in freshman writing seminar; 88 in geometry; 100 in band and jazz band; 98 in physical education; 78 in Spanish; 93 in biology; and 85 in global studies (Dist. Ex. 6 at p. 1).[19]

The prior written notice from the June 8, 2022 CSE meeting noted that the parents wanted to CSE to consider classification of the student based on his grades, but the CSE concluded that based upon scores from his 2021-22 report card the student was "accessing the curriculum" (Dist. Ex. 18 at p. 2).[20]  The private psychologist testified that she attended the June 2022 CSE meeting and, although grades were discussed, they were not the "key issue" (Tr. pp. 628, 646-47).  Overall, the evidence in the hearing record demonstrated that the student's testing and grades were largely in the average range with some noted weakness in working memory and processing speed as well as attentional issues, but none of which indicated that the student demonstrated an inability to learn.  Accordingly, I find insufficient evidence in the hearing record that the student had an inability to learn, much less one that "cannot be explained by intellectual, sensory, or health factors."[21]

b. Inability to Build or Maintain Satisfactory Interpersonal Relationships

Turning to the second of the characteristics, according to the August 2021 psychological evaluation, results from the Piers-Harris 3 demonstrated that the student perceived himself as having successful peer relationships, that he felt liked by his peers, and that his peers wanted to include him in activities (Parent Ex. F at pp. 11-12).  According to the student, he participated in school activities (id. at p. 12).  During the student interview part of the August 2021 psychological evaluation the student stated that "he liked school" and "enjoy[ed] his friends" (id. at pp. 17-18).  He also reported that he liked basketball, tennis, track, and robotics club (id. at p. 18).

Contrary to the information from the August 2021 psychological evaluation, the student's mother testified that during ninth grade she observed that the student isolated himself and did not communicate with his friends (Tr. pp. 729, 886).  She also reported to the private psychologist that the student had difficulty making friends, was "uncomfortable" with students his age, and was anxious (Parent Ex. I at p. 5).  In the April 2022 social history and educational history questionnaire, the parents stated the student did not hang out with his friends (Dist. Ex. 9 at p. 3).  However, the student's guidance counselor testified that the student had friends, he was not "the most social but he had friends," and she did not observe that the student had "difficulty socially" in high school (Tr. p. 162).

During the May 2022 classroom observation, the school psychologist observed that the student exhibited appropriate peer relationships and spoke and contributed to a group discussion (Dist. Ex. 10 at pp. 1-2).  The student was observed working in a group of four other students but did not look at other group members or the teacher when sharing his information (id. at pp. 2-3).  During the April 2022 504 meeting, at least one teacher reported that the student responded to refocusing prompts and there were no noted concerns or conflicts regarding the student's relationships with teachers (Dist. Ex. 7 at pp. 1-2).  For the student's ninth grade report card, many of the teacher comments noted that the student was a pleasure in class, cooperative, courteous, conscientious, and diligent (Dist. Ex. 6 at p. 1).  Some of the teachers commented that the student needed to work on essay writing, needed to work more independently, seldom requested help, should participate more in class, and his performance was affected by attitude (id.).

Overall, the weight of the evidence does not demonstrate that the student had an inability to build or maintain satisfactory interpersonal relationships.

c. Inappropriate Types of Behaviors or Feelings

Turning to the next characteristic, in a February 15, 2022 email to the student's guidance counselor, the parents relayed an incident that occurred in February 2022 in which the student had a disproportionate emotional response when disappointed, advised the guidance counselor that the student was staying up late to complete assignments, cried in his room on one occasion, and was "anxious about schoolwork" (Parent Ex. V at pp. 1-2).  Around this same time, the student's mother also expressed concern that the student was "angry all the time" and punched a hole in a wall at home on one occasion (Tr. pp. 492, 648-49, 729, 731, 757, 856-57, 868, 872-73).  The mother testified that from February 15th through March 2nd the student's "condition had been deteriorating gradually" (Tr. p. 856). Furthermore, the parents noted in the April 4, 2022 social and educational history questionnaire that the student was anxious and had trouble sleeping (Dist. Ex. 9 at p. 3).

The school psychologist testified that she and the guidance counselor became concerned with these reports from the parents regarding the student's behaviors at home including "outbursts, he was not sleeping, things like that" so they recommended that the student be seen by a psychiatrist or psychologist, but the parents brought the student to his pediatrician (Tr. pp. 228-29, 299).  Additionally, the school psychologist testified that the concerns raised by the mother at home were not seen in school (Tr. p. 299).  As a result, the parents obtained a pediatrician note that was reviewed by the June 2022 CSE that the student's ADHD and anxiety were holding him back both academically and socially (Parent Ex. G).  The school guidance counselor also testified that the student's generalized anxiety "did not present in school," just ADHD (Tr. p. 154).  Nevertheless, based on the concerns of the school psychologist and school guidance counselor, the district obtained a psychiatric evaluation of the student to assess his current functioning (see Parent Ex. H).  The psychiatrist noted that in his conversation with the student's mother she reported a change in the student in early February 2022 in that he was unable to fall asleep until 2:00 a.m. and "seemed angry/socially isolated" but that the student "seemed better while in school" (Parent Ex. H at p. 2).[22]

The school psychologist testified that she provided counseling to the student for a brief period of time in ninth grade because the mother expressed concerns in February 2022 about the student's behaviors in the home and his mood (Tr. pp. 221-22).  At the April 2022 504 meeting, the school psychologist noted that the student was "resistant to speak with her" and was angry about upcoming evaluations (Dist. Ex. 7 at p. 2).  She testified that she did see the student, but the student did not want to go to counseling and in April 2022 the counseling services ended because it was not helping the student (Tr. pp. 222-23).

As noted above, according to the BRIEF-2 self-report conducted as part of the August 2021 psychological evaluation, the student's responses indicated concerns related to: resisting impulses, awareness of his functioning in social settings, adjusting to changes in his environment, reacting to events appropriately, initiating tasks/activities and problem-solving, working memory, and planning and organizing his approach to problem solving (Parent Ex. F at p. 15).  The school psychologist also noted that the student self-reported emotional dysregulation when routines/perspectives were changed or when flexibility was needed (id. at pp. 15, 19).  In addition, the student expressed that he "fe[lt] that he cause[d] trouble for his parents, and that he fe[lt] unsure if he c[ould] meet the expectations placed on him" (id. at p. 12). 

During the April 2022 psychiatric evaluation, the student revealed to the psychiatrist that he "never liked school," that he felt stressed all the time in school, that his mood had been bad since the start of ninth grade, that he used extra time for assignments, and felt anxious (Parent Ex. H at p. 3).  The psychiatrist concluded that the student "demonstrate[d] "significant levels of stress" that were "exacerbated by the academic requirements/expectations for earning high school credits" (id. at p. 4).  He described the student's presentation as "hostile and withholding" and concluded that the student exhibited an other specified anxiety disorder and ADHD, inattentive presentation (id.).

Furthermore, the private psychologist noted that the student misread social cues, showed anxiety, had rigidity in thinking, and perseverated (Parent Ex. I at pp. 26, 28, 30).  The private psychologist found that the results of the Connors-3 self-rating, parent, and teacher rating scales showed "very elevated" scores for inattention, hyperactivity/impulsivity, learning problems, executive functioning and peer relations, and defiance/aggression all of which confirmed the student's prior diagnosis of ADHD (id. at pp. 26-28).  According to the results of the Behavior Assessment System for Children, Third Edition Behavioral and Emotional Screening System (BASC-3 BESS) parent form, the student received an "elevated risk" score for behavioral and emotional risk, internalizing risk, and adaptive skills risk indexes and the BASC-3 BESS student form found that the behavioral and emotional risk and self-regulation were in the "extremely elevated risk" range (id. at pp. 17-18).

On February 15, 2022, the student had one instance where he received an afterschool detention because he clogged a school toilet which had occurred "several times before" (Tr. p. 159; Parent Ex. W at pp. 1-3).  Otherwise, there were no other disciplinary concerns with the student (Dist. Ex. 7 at p. 2).  Nevertheless, this single incident at school is not sufficient to find that the student met one of the criteria for emotional disability.

The United States Department of Education's Office of Special Education Programs has indicated that the third characteristic,

"inappropriate behaviors under normal circumstances" as operationally defined by a number of States may include those behaviors which are psychotic or bizarre in nature or are atypical behaviors for which no observable reason exists. For example:

Running away from a stressful situation, whether at home or at school, is not characteristic of the type of behavior this definition contemplates.  Nor is the taking of alcohol or drugs, however harmful, such an inappropriate act under normal conditions as to come within this definition.  This definition might include behavior such as assaulting teachers or students for no apparent reason. (emphasis in original).  In re: Sacramento County Office of Education, 1981-82 EHLR DEC. 503:314, 316. See also Sequoia Union High School District, 1985-86 EHLR DEC. 507.495.

The essential element appears to be the student's inability to control his/her behavior (Doe v. Maher, 793 F.2d 1470, 1480 footnote 8, (9th Cir. 1986)) and conform his/her conduct to socially acceptable norms (Honig v. Doe, 108 S.Ct. 592, 595 (1988)).

(Letter to Anonymous, 213 IDELR 247 (OSEP 1989).

In this case, while the student experienced anxiety in response to stressful situations, the student's behavior under the circumstances in which he found himself were not so unusual to satisfy the third characteristic.

d. General Pervasive Mood of Unhappiness or Depression

Turning to the fourth characteristic, the student's mother testified that in February 2022 she noticed that the student "lowered his head more and he was so depressed" (Tr. p. 825).  Also, she reported to the private psychologist that the student had a hard time making friends and was anxious and "seem[ed] unhappy most of the time" (Parent Ex. I at p. 5).[23]  On the social and educational history questionnaire dated April 4, 2022, the parents reported that the student lacked energy, was easily frustrated, and did not want to talk to his parents or sister (Dist. Ex. 9 at pp. 2-3).

The August 2021 evaluation did not document that the student had any signs of depression and according to the AMP self-report, the student saw himself "as generally happy" (Parent Ex. F at pp. 15-16).  However, the private psychologist documented in her neuropsychological evaluation that the student had trouble expressing/regulating his feelings, overreacted, had emotional outbursts/explosiveness, "quick or frequent mood changes," "many periods of feeling upset," and low frustration tolerance (Parent Ex. I at pp. 28, 30).  Moreover, the psychiatrist in April 2022 described the student as "despondent" and "easily annoyed" (Parent Ex. H at p. 3).

The school guidance counselor testified that the student did not display social or emotional issues in school and according to the student's mother the guidance counselor told her that at school the student was "showing that he was happy" (Tr. pp. 162, 742).  The school psychologist also testified that by the end of eighth grade there was a "subtle shift with [the student's] I am not going to say mood but with school" because he was being evaluated by her and he did not want to receive special education services (Tr. pp. 213-14).

Absent in the hearing record is any evidence that the student experienced a general pervasive mood of unhappiness or depression with respect to the student's education, and in fact the student's mother reported that her concerns about the student's emotional well-being only started in February 2022 (Tr. pp. 492, 648-49, 729, 731, 757, 856, 868, 872-73; see Parent Ex. W).  Accordingly, the evaluative information before the June 2022 CSE was not sufficient in this case to support the conclusion that the student met the characteristic for a general and pervasive mood of unhappiness or depression over a long period of time and to a marked degree.

e. Physical Symptoms or Fears Associated with Personal or School Problems

With regard to the last of the five characteristics, there was no evidence that the student demonstrated physical symptoms or fears associated with school during the ninth grade as the student had no absences and only three tardies for the entire 2022-23 school year (Dist. Ex. 6 at p. 1).  The private psychologist testified that she did not see anxiety with the student or that he was distressed about going to school (Tr. pp. 549, 692).  Also absent from the hearing record were any reports from the school nurse that the student was sick and needed to leave school (see Parent Exs. A-GG; see Dist. Exs. 1-19).  Furthermore, the parents did not offer any testimony that the student had difficulty getting to school or wanted to leave school early (see Tr. pp. 713-770, 797-895, 919-944).  Accordingly, the hearing record does not include evidence that the student met this characteristic.

Based upon the foregoing facts contained in the hearing record, I do not find that the student met one or more of the five characteristics of an emotional disability "over a long period of time and to a marked degree" (see 8 NYCRR 200.1[zz][4]).  Next, I will consider the specific criteria for Other Health Impairment.

2. Other Health Impairment

Because the student has received several diagnoses, including ADHD, autism, and generalized anxiety, and the parents did not identify the category in which they sought classification, I find the other likely relevant disability category for consideration would be the other health-impairment classification.

Under State and federal regulation, other health-impairment is defined as "having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that . . . [i]s due to chronic or acute health problems such as . . . attention deficit hyperactivity disorder [ADHD]" (34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).[24]

As previously discussed, the school psychologist administered the Piers-Harris 3 to assess the student's self-concept in which the student reported difficulty with school tasks, completing homework, daydreaming in class, listening in class, and forgetting what he learned (Tr. p. 211; Parent Ex. F at pp. 11-12).  But he also self-reported that he was "an important member of his class" and he "c[ould] give a good report in front of the class" (Parent Ex. F at p. 12).  In addition, self-reporting on the BRIEF-2 revealed that the student experienced difficulty with aspects of executive function including "resisting impulses, awareness of his functioning in social settings, adjusting well to changes in the environment, people, plans, or demands, reacting to events appropriately, beginning tasks, activities, and problem-solving approaches, sustaining working memory, and planning and organizing his approach to problem solving appropriately" (id. at p. 15).  The student's profile also showed inflexibility with problem-solving that was "combined with emotional dysregulation" (id.).  Further, the AMP self-report assessed the student's motivation, personality characteristics, interpersonal skills, work style, and other factors associated with school success (id.).  Based on the student's response, he demonstrated relative strengths in assertiveness, planning and organizing, and initiative, along with relative weaknesses in internal motivation to succeed, patience when faced with a difficulty, and his ability to work with others (id.).  The May 2, 2022 classroom observation, also considered by the June 2022 CSE, did not show any difficulties with the student's classroom management as he was not distracted, impulsive, or disruptive, was able to keep pace with the class, was on-task, and organized and prepared for class (Dist. Ex. 10 at pp. 1-4).

Similar to the results of the August 2021 psychological evaluation, the private psychologist noted concerns from the scores on the BRIEF-2 that the student had difficulties with inhibition, self-monitoring, emotional control, initiation of tasks, working memory, organization, task monitoring, and planning (Parent Ex. I at pp. 28-29).  The private psychologist also administered the Conners-3 parent and teacher rating scales which showed concerns with inattention, hyperactivity/impulsivity, and executive functioning (id. at p. 26).  According to the mother's ratings on the Conners-3 the student's "problems" were "seriously affect[ing] his functioning very frequently" in both the academic and social settings and often at home (id. at p. 27).  In addition, the student's teachers that completed the Conners-3 rating scales showed elevated scores in inattention, hyperactivity/impulsivity (id.).  Based upon these results, the psychologist found that ADHD was "strongly indicated" and diagnosed the student with ADHD, inattentive/overfocused type (id. at pp. 28, 36).[25]  However, the mere evidence that a student has a medical or DSM-V diagnosis does not mean she meets the criteria for special education under the IDEA or State law.

Here, the June 2022 CSE considered the note from the student's pediatrician dated March 3, 2022 that indicated the student was "being hel[d] back academically and socially by his ADHD and anxiety" (Parent Ex. G; Dist. Exs. 5 at p. 1; 7 at p. 1).  At the April 2022 504 meeting, the student's teachers reported that he required refocusing and prompting during classes, exhibited distractibility, needed "reassurance" of homework assignments, required that directions be repeated, perseverated, and had difficulty concentrating (Dist. Ex. 7 at pp. 1-2).  In considering the April 2022 physician note, the April 2022 504 committee found that the student's diagnoses of anxiety and ADHD impacted the student's "ability to learn, focus, and concentrate without accommodations to his academic program" (id. at pp. 1-3).  The April 2022 psychiatric evaluation also stated that the student "experienced" ADHD, inattentive presentation (Parent Ex. H at p. 4).  The district does not dispute the student's diagnosis of ADHD.[26]

In addition to the student's diagnosed condition of ADHD, the student was diagnosed by the private psychologist as having autism, level 1 without intellectual impairment which was "due to inflexibility of behavior, distress and/or difficulty changing focus or action and demonstrating restricted/repetitive behaviors which are obvious to the casual observer and interfere with functioning in a variety of contexts" (Parent Ex. I at p. 36).[27]

In light of the above, I find the evidence indicates that the student has a health condition that would fall within the those identified in the other health-impairment category.  Having found that the student met the above-mentioned criteria for the disability category of other-health impairment, I will next consider whether the student's other health-impairment "adversely affect[ed] [the] student's educational performance" (8 NYCRR 200.1[zz][10]).

3. Adverse Affect

For both the emotional disability and other health impairment categories of disability, in order for a student to be found eligible for special education, it must be determined whether the characteristics discussed above adversely affected the student's educational performance (34 CFR 300.8[c][4], [9]; see 8 NYCRR 200.1[zz][4], [10]).  The meaning of adversely affecting educational performance is an issue that has been left for each state to resolve (J.D., 224 F.3d at 66; S.B. v. Goshen Cent. Sch. Dist., 2022 WL 4134457, at *12 [S.D.N.Y. Sept. 12, 2022]; M.N. v. Katonah-Lewisboro Sch. Dist., 2016 WL 4939559, at *10 [S.D.N.Y. Sept. 14, 2016]).  Although some states elect to establish further, more explicit definitions for these terms, often through regulation or special education policy (see, e.g., Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 11 [1st Cir. 2007]; J.D., 224 F.3d at 66-67; Johnson v. Metro Davidson County Sch. Sys., 108 F. Supp. 2d 906, 918 [M.D. Tenn. 2000]), others do not and instead resolve the issue on a "case-by-case" basis (R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 944 [9th Cir. 2007]; see, e.g., Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1375-76 [8th Cir. 1996]; Greenland Sch. Dist. v. Amy N., 2003 WL 1343023, at *8 [D.N.H. Mar. 19, 2003]).

The courts in this circuit have found that academics are a primary focus of the term educational performance (A.J. v. Bd. of Educ., East Islip Union Free Sch. Dist., 679 F. Supp. 2d 299, 308-11 [E.D.N.Y. 2010] [noting the difficulty of interpretation of the phrase "educational performance" and that it must be "assessed by reference to academic performance which appears to be the principal, if not only, guiding factor"]; see also S.B., 2022 WL 4134457, at *12 ["Courts in this Circuit, however, have consistently referred to academic performance in determining whether an emotional disturbance adversely affects a student's educational performance"]; M.N., 2016 WL 4939559, at *11 ["as noted above, 'proof of an adverse impact on academic performance is a prerequisite for eligibility for special education services under [the] IDEA and New York's implementing regulations'"]); Maus, 688 F. Supp. 2d at 294, 297-98 [emphasizing that educational performance is focused on academic performance rather than social development or integration]; see Muller v. E. Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998]; W.G. v. New York City Dep't of Educ., 801 F. Supp. 2d 142, 170-75 [S.D.N.Y. 2011]; N.C. v. Bedford Cent. Sch. Dist., 473 F. Supp. 2d 532, 543 [S.D.N.Y. 2007], aff'd, 300 Fed. App'x 11 [2d Cir. Nov. 12, 2008]; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 399).  For example, in a case involving a disabling condition such as an ADHD combined with a bipolar disorder has not been sufficient to confer eligibility for special education when a psycho educational assessment showed that the student tested above grade level and the student's grades and test results demonstrate that she continuously performed well the in public school (C.B. v. Dep't of Educ. of City of New York, 322 F. App'x 20, 22 [2d Cir. 2009]).

While the student was diagnosed with ADHD and the district recognized the characteristics that the student displayed in school, as previously discussed, the evidence does not demonstrate that it affected the student's educational performance as that term has been interpreted.  According to the teacher comments, report cards, classroom observation, and attendance records, the student was able to be redirected, and responded to prompts, and therefore, his ability to participate in school was not affected in a meaningful way.  While the student exhibited inattention and distractibility, the evidence tends to show that it did not adversely affect his academic performance.

Specifically, the information from the August 2021 psychological evaluation, May 2022 classroom observation, April 2022 private neuropsychological evaluation, teacher information reported at the April 2022 504 meeting, and student's grades from eighth (2020-21 school year) and ninth grades (2021-22 school year) show that the student was achieving academically (Parent Exs. F; I; Dist. Exs. 4, 6-7; 10; see also A.J., 679 F. Supp. 2d at 310 ["Plaintiffs' arguments that [the student's] 'educational performance' has been hampered by his emotional and behavioral problems such that he is unable to reach his maximum academic potential . . . has been rejected by the Supreme Court"], citing Rowley, 458 U.S. at 186).  Accordingly, with respect to the classification of other health impairment, the record does not support a finding that ADHD adversely affected his educational performance (see Application of a Child Suspected of Having a Disability, Appeal No.06-015).

4. Requires Special Education

In addition to meeting criteria for a specific disability category, in order to be deemed eligible for special education, a student must by reason of such disability, "need special education and related services" (20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1]; 34 CFR 300.8[a][1]; 8 NYCRR 200.1[zz]).  State regulation defines "special education" as "specially designed individualized or group instruction or special services or programs" (8 NYCRR 200.1[ww]; see 20 U.S.C. § 1401[29]; Educ. Law § 4401[2]; 34 CFR 300.39[a][1]).  "Specially-designed instruction," in turn, means "adapting, as appropriate, to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]).  In New York, the Education Law describes special education as including "special services or programs," which, in turn, includes, among other things, "[s]pecial classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services . . . , assistive technology devices as defined under federal law, travel training, home instruction, and special [education] itinerant teacher[] [services] . . . ." (Educ. Law § 4401[1], [2][a]).  In New York the definition of "special services or programs" (and therefore special education) also encompasses related services, such as counseling services, occupational therapy, physical therapy, and speech-language therapy, as well as "other appropriate developmental, corrective or other support services" (Educ. Law § 4401[2][k]).  However, a child who needs only accommodations or services that are not part of special education to fulfill the objective of the need inquiry does not 'need' special education" (Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 85 [1st Cir. 2016]; see J.R. v. Bd. of Educ. for Iroquois Cent. Sch. Dist., 2020 WL 10817806, at *14 [W.D.N.Y. Nov. 24, 2020], adopted at 2021 WL 2143033 [W.D.N.Y. May 26, 2021] [declining to find a student with dyslexia eligible for special education where the "needs special education" factor was not met]).

The evidence in this case shows that the April 2022 504 committee recommended accommodations of access to study guides, allow for additional processing time, breakdown of assignments into smaller and manageable parts, check for understanding, preferential seating, copy of class notes, support for organizational skills, use of mapping to plan written assignments, templates for writing assignments, and a revision checklist for writing assignments (Dist. Ex. 7 at pp. 3-4).  The student was also recommended for the following testing accommodations: check for understanding of directions, flexible setting, on-task focusing prompts, extended time, tests administered in location with minimal distractions, and use of break periods (id. at p. 4).  The 504 committee also recommended supports for school personnel on behalf of the student which consisted of a counseling consultation with teachers/staff two times per month for 20 minutes (id. at pp. 2, 4).  Although at the April 2022 504 meeting individual counseling was discussed for the student, the school psychologist testified that the student was "resistant to speak with her" and because the student did not want to go to counseling in April 2022 she stopped the counseling (Tr. pp. 222-23).  Also, the 504 plan did not recommend counseling as a related service (Dist. Ex. 7 at pp. 3-4).

The school guidance counselor testified that "overall" the student was still making progress, making improvements in his courses, and his grades were "pretty consistent" across the board (Tr. pp. 151-54).  In addition, she testified that the student did not qualify as a student with a disability and that his needs could be met with program accommodations in the April 2022 504 plan (Tr. pp. 149, 153).  Furthermore, the school psychologist testified that the supports the district recommended in the 504 plan would help the student for testing and in the classroom with his ADHD for organization, helping him with class notes, checking for understanding, and extra time on testing (Tr. pp. 231-32). She testified that the student did not require special education for tenth grade (Tr. pp. 273-74).  At the time of the June 2022 CSE meeting, the student achieved scores on standardized testing that were primarily within the average range of academic functioning (see generally Parent Exs. F; I).

Therefore, the greater weight of the testimonial and documentary evidence contained in the hearing record leads to the conclusion that the student's inattentiveness, preservation, and focusing difficulties or his feelings of unhappiness or anxiousness, although certainly cause for concern which the district was addressing with accommodations did not, convincingly show that the student required interventions that were special education at the time of the June 2022 CSE meeting.  Accordingly, I find that the evidence in the hearing record leads to the conclusion that the student does not meet the criteria for special education eligibility as a student with an emotional disturbance or other health impairment.  Any procedural defects regarding the precise timing of the determination would not, under the circumstances, have led the CSE to a different result.

C. September 2022 CSE Meeting—Eligibility for Special Education

I will next consider whether, based on new information before it, whether the September 2022 CSE should have found the student eligible for special education as a student with a disability.

Testimony during the hearing indicates that the parent, private clinical psychologist, the director, and school psychologist were in attendance at the September 2022 CSE meeting, and it was a continuation of the June 2022 CSE meeting (Tr. pp. 656; 701-02; 810-15).

It is unclear from the hearing record if anyone from the district was aware of the student's hospitalization prior to the September 7, 2022 meeting; however, based on the student's mother testimony that at the meeting the private psychologist "introduced [the student's] condition at [the] [h]ospital," it appears that the hospitalization had not been disclosed before the meeting (see Tr. pp. 811-13).[28]^, [29]  The district conducted a psychiatric evaluation of the student, and a report was generated on August 9, 2022 (see Dist. Ex. 11).  According to the student's mother, the psychiatrist conducted the evaluation of the student on July 28, 2022 after the hospital day treatment program ended for the day (Tr. pp. 876-77).  However, the psychiatric evaluation made no reference to the student's hospitalization and the hearing record does not make clear if the psychiatrist was aware of the hospitalization at the time of the evaluation (see Dist. Ex. 11).

According to the August 2022 psychiatric evaluation, although the student's mother reported the student expressed some anxiety at home, the student and his mother reported that, since the school year ended, the student's "mood ha[d] improved significantly," he "denie[d] depressed mood at the time of the assessment," was "reported to sleep and eat well . . . and ha[d] a good energy level," "g[ot] along 'fine' with his parents and his sister," "enjoy[ed] sports," and reported having "friends who he enjoy[ed] hanging out with and playing video games" (Dist. Ex. 11 at p. 2).  On the other hand, according to the evaluation, the parents reported that the student "appeared depressed and more withdrawn at home" and had begun to isolate (id.).  The student reported that "[t]he problem [wa]s school. . . . They just don't want to give me what I need" (id.).

The August 2022 psychiatric evaluation indicated that the student met the criteria for diagnoses of ADHD, an adjustment disorder with mixed disturbance of emotions and conduct, while ruling out autism (Dist. Ex. 11 at p. 4; see Tr. pp. 268-69).  The psychiatrist summarized that the student had ADHD and "without treatment [the student] [would] likely . . . . have sustained struggles with focus that w[ould] impact on his ability to engage in the curriculum" (Dist. Ex. 11 at p. 5).  The psychiatrist also acknowledged the student's "history of anxiety," "inflexibility and language issues, as well as longstanding social struggles" (id.).  The psychiatrist noted the view of the private clinical psychologist that the student "ha[d] an underlying Autistic Spectrum Disorder" but indicated, instead, that he believed the student's struggles "c[ould] also be understood in the context of an untreated ADHD and the frustrations associated with that condition" (id.).  The psychiatrist also stated that the student's "relative weaknesses in the areas of working memory and processing speed" were associated with ADHD and the student "did not present with evidence of stereotypical behaviors that were often seen in children on the spectrum" (id.).

The psychiatrist indicated that, "[g]iven his recent academic struggles and his underlying attentional difficulties, the student would benefit from academic supports and accommodations in the school setting," as well as psychological supports in the school setting, a socialization group, and ongoing individual therapy outside of school to help him with his underlying anxiety and struggles with self-esteem, as well as his social difficulties (Dist. Ex. 11 at p. 5).  The psychiatrist also stated that the student could benefit from a trial of a psychostimulant medication for ADHD to assist him with improving his focus and ability to complete tasks and to engage in the curriculum (id.).

The school psychologist testified that the second district psychiatric evaluation was reviewed at the CSE meeting and confirmed the ADHD diagnosis and introduced an adjustment disorder with mixed disturbance of emotions and conduct while ruling out autism spectrum (Tr. p. 269).  The parent testified that, although the psychiatrist did not attend the September 2022 CSE meeting, the director read the report during the meeting, and, when she asked at the meeting whether "based on [student]'s situation and the information as well as [August 2022 psychiatric] report whether [the CSE] would classify" the student, the director responded no (Tr. pp. 799-800, 812).

Overall, while the new information before the CSE, particularly initial information shared by the parents that the student had been hospitalized due to his social/emotional struggles, may have supported a determination that the student met the initial characteristics of an emotional disability in addition to an other health impairment,  but it did not shed new light showing  his education was adversely affected by such characteristics or that the student needed additional interventions that were special education.  The supports recommended by the psychiatrist, such as socialization group and accommodations were of the type that could be provides outside the auspices of special education.  Accordingly, despite the district's procedural violations relating to the timing of the CSEs and its failure to make concrete determinations about the student's eligibility at the June and September 2022 CSE meetings, the information before each CSE did not indicate that the student met the criteria for eligibility for special education as a student with a disability at that time.

Although the evidence in the hearing record indicates that the student did not meet the criteria for eligibility for special education as a student with a disability based on the information before the June and September 2022 CSEs, the district is reminded that, when initially considering a student's eligibility based on a referral, it must make a determination regarding eligibility and may not defer the decision beyond the timelines set forth in State regulation.[30]  If the district wanted to conduct more evaluations, it could agree to do so but would still have to make an initial eligibility determination based on the information before it.  Further, contrary to the position it took in its August 2022 letter to the parents (see Dist. Ex. 13), the district was wrong to disavow its obligation to consider the student's eligibility based on the parents' decision to unilaterally place the student.  A district continues to have an obligation to offer a FAPE to resident students notwithstanding the unilateral placement of the student outside of the district (J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665-66 [S.D.N.Y. 2001] [noting that the "district-of- residence's obligations do not simply end because a child has been privately placed elsewhere"]), at least so long as the parent did not place the student "without regard to any IEP" (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451 n.9 [2d Cir. 2015], citing Child Find for Parentally-Placed Private School Children with Disabilities, 71 Fed. Reg. 46,593 [Aug. 14, 2006]).  Here, the parents maintained their desire for an IEP for the student and, accordingly, their decision to unilaterally place the student did not relieve the district of its obligation.

I further note that the determination that the student did not meet the criteria for special education holds for the June and September 2022 CSE meetings, which were challenged in the due process complaint notice.  The evidence contains information that, after the September 2022 CSE meeting at issue here, the district had additional information about the student, including the discharge paperwork from the student's July-August 2022 partial hospitalization program and the June 2023 neuropsychological evaluation (see Parent Ex. J; Dist. Ex. 19).  As there was not a CSE that considered these documents within the timeframe at issue in this proceeding, I have not considered them in assessing the student's eligibility.  If it has not already done so, the district should reconvene and consider these documents in combination with the information discussed herein, updated information about the student's grades and school performance, and input from the student's teachers, providers, and parents.

VII. Conclusion

Having found that the student did not meet the eligibility criteria as a student with a disability eligible for special education and that, therefore, the district did not deny the student a FAPE, the necessary inquiry is at an end and there is no need to reach the issue of whether Westfield was an appropriate unilateral placement for the student or whether equitable considerations support an award of tuition funding (see Burlington, 471 U.S. at 370; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).

In light of this determination, I need not address the parties' remaining contentions assertions contained in the appeal and cross-appeal.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.