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.  Petitioner (the district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondents' (the parents') son and ordered it to fund the student's tuition at the Quad Preparatory School (Quad Prep) for the 2022-23, 2023-24, and 2024-25 school years.  The appeal must be sustained.

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

According to the student's mother (the parent), from preschool through second grade, the student attended a Montessori school (Parent Ex. V ¶ 9).[1]  Thereafter, the student attended the district's gifted and talented program during the 2020-21 school year (third grade), the 2021-22 school year (fourth grade), and most of the 2022-23 school year (fifth grade) (Parent Ex. V ¶¶ 4, 10, 14).

According to the parent's affidavit testimony, during the 2021-22 and 2022-23 school years, the student experienced "significant social issues, including bullying," and struggled with the large class size (approximately 30 children) and "the surrounding non-stop noise in the classroom," which triggered the student to exhibit "symptoms associated with sensory overload," "anxiety," and eventually depression and school refusal (Parent Ex. V ¶¶ 11-14).  The hearing record includes emails between the district and the parents for the purpose of scheduling a meeting for March 27, 2023 to discuss a 504 plan for the student (Dist. Ex. 8; see Dist. Exs. 6; 7; 10).

The parent testified that, in April 2023, the student's "mental health degraded significantly" and he completed the remainder of fifth grade via home instruction with a district teacher providing instruction each week to "oversee and evaluate [the student's] academic progress throughout the last six weeks of the school year" (Parent Ex. V ¶ 14).  According to email correspondence, the student began receiving home instruction in the beginning of May 2023 (Dist. Ex. 9).

The student completed the 2022-23 school year passing all of his classes with a score of "4" in each graded subject indicating the student excelled in standards (Dist. Ex. 5).

Prior to the start of the 2023-24 school year, the parents met with the assistant principal, dean, and guidance counselor at the middle school that the student was anticipated to attend for sixth grade to share their concerns regarding the student's mental health struggles, in addition to "the bullying he had experienced during 2021-2022 and 2022-2023 school years" (Parent Ex. V ¶ 16).  According to the parent, although the student switched schools from the 2022-23 (fifth grade) school year to the 2023-24 (sixth grade) school year, the student was in a class with many of his prior classmates (id.).  The parent testified that, following the meeting, the school provided the student with access to a quieter room for lunch to "avoid the noise and chaos of the large cafeteria," but that he continued to experience bullying as well as social/emotional distress and anxiety throughout the 2023-24 school year (id. ¶¶ 16-18).

In spring 2024, the parents obtained a neuropsychological evaluation of the student, which was conducted over four days between April and July 2024 (Parent Ex. B).[2]  Based on behavioral observations of the student during testing, a classroom observation of the student in his honors math class, and the student's performance on standardized testing, the evaluator offered diagnoses of autism spectrum disorder, level 1, without accompanying intellectual impairment; attention deficit hyperactivity disorder (ADHD), combined presentation; frontal lobe and executive function deficit; major depressive disorder, moderate; generalized anxiety disorder; and developmental coordination disorder (Parent Ex. B at pp. 1-4).

In the meantime, on June 12, 2024, the parents, via an emailed letter, requested that the district evaluate the student to determine his eligibility for special education services noting the "significant behavioral, emotional, and social struggles [that] were impacting not only his ability to function at school, but his overall wellbeing, including his mental health and physical safety" (Dist. Ex. 17).

The student completed the 2023-24 school year, passing all of his classes with a weighted average grade of over 97 (Dist. Ex. 13).

The parent reported that she provided the neuropsychological evaluation report to the district on July 18, 2024 (Parent Ex. V ¶ 25).  On July 22, 2024, the district conducted a social history interview with the parent as part of the initial evaluation process (Parent Ex. C).

On July 31, 2024, the CSE convened to determine the student's initial eligibility for special education (Dist. Ex. 1 at p. 1).  The CSE considered the results of the neuropsychological evaluation, the social history, and teacher progress reports and determined that the student did not meet the criteria for eligibility for special education as a student with a disability (see Dist. Exs. 1 at pp. 1, 3-7; 16 ¶ 8).  The district school psychologist who attended the July 2024 CSE meeting testified that the CSE determined an IEP would not have been appropriate for the student considering the student's success in a general education setting, his high cognitive levels, and that his social/emotional issues were not having an effect on his academics (Dist. Ex. 16 ¶ 11).

On August 5, 2024, the parents, through counsel, sent a letter to the district requesting a reconvene of the CSE "to reconsider [the student's] eligibility for an IEP and classify him as a student requiring special education programming and related services" (Parent Ex. D).  By letter to the district dated August 8, 2024, the parents, via their attorney, repeated their concerns from the August 5, 2024 letter, notified the district of their intention to unilaterally place the student at Quad Prep for the 2024-25 school year and seek public funding for the costs of the student's placement (Parent Ex. E).[3]

On August 8, 2024, the parents executed an enrollment contract with Quad Prep for the 10-month 2024-25 school year with a tuition amount of $104,280 (Parent Ex. P at pp. 2, 6).

On August 26, 2024, the parents sent another letter to the district, via their attorney, following up on their August 5, 2024 and August 8, 2024 letters, indicating that they had not yet received a response from the district and again requesting a reconvene of the CSE to find the student eligible for special education and develop an IEP for the student (Parent Ex. F at p. 2).  According to the parent's testimony via affidavit, on August 26, 2024, she received a response from the district providing information about who to contact to request a new CSE meeting (Parent Ex. V ¶ 32).  The parent indicated she emailed and phoned the two individuals identified by the district, but received no response from either (id.).

The student began classes at Quad Prep on September 5, 2024 (Parent Ex. N).

On September 17, 2024, the parents, through their attorney, sent a letter to the district summarizing the previous August correspondence sent to the district and noting their additional attempts to contact the district and the district's failure to respond to their request to reconvene the CSE (Parent Ex. G).  The parents requested district funding for the student's placement at Quad Prep for the 2024-25 school year and transportation (id.).

A. Due Process Complaint Notice

In a due process complaint notice dated October 2, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23, 2023-24, and 2024-25 school years by failing to "evaluate and identify [the student] as a student requiring special education services" and denying the student the benefit of an IEP (Parent Ex. A pp. 2, 12).  The parents alleged that the student experienced "significant social issues, including bullying" during the 2021-22, 2022-23, and 2023-24 school years (id. at pp. 3, 4).  The parents further alleged that the district failed to evaluate the student in all areas of suspected disability and failed to identify the student as a student with a disability eligible for special education, thereby violating its "Child Find" obligations and failing to offer appropriate special education programming (id. at p. 12).  In addition, the parents asserted that the district deprived them the opportunity for meaningful participation by "ignoring [their] concerns for the development of an appropriate program, placement, and/or services for the 2024-2025 school year" (id.).  For relief, the parents requested that the district provide the student compensatory education in the form of related services including counseling services for the 2022-23 and 2023-24 school years (id.).  The parents also requested full reimbursement for costs associated with the student's placement at Quad Prep for the 2024-25 school year, including transportation costs (id. at pp. 13-14).[4]  Further, the parents sought district funding for the costs of "out-of-pocket expenses" including as related to evaluations of the student (id. at p. 13).

B. Impartial Hearing Officer Decision

After a prehearing conference on November 7, 2024 (Tr. pp. 1-13), an impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on December 11, 2024 and concluded on January 16, 2025 after two days of hearings (Tr. pp. 14-172).  In a decision dated March 7, 2025, the IHO found that the district violated its child find obligations and denied the student a FAPE, noting that the district was "well aware of issues not limited to [the s]tudent's low frustration tolerance, aversion to noise, and difficulty regulating his emotions," which she found led to persistent bullying and the student's removal from school (IHO Decision at p. 5).

The IHO summarized her factual findings related to the district's knowledge, during the 2021-22 school year, of the student's sensitivity to noise, sensory issues, inability to understand social cues and social situations, and perception that he was being attacked or disliked by others, finding that the district was aware of the student's social issues but failed to refer the student for an evaluation to determine his eligibility for special education in contravention of its child find obligations (IHO Decision at pp. 6-7).  The IHO further found that the parent credibly testified as to the student's behaviors and challenges, including the instances of bullying during the school years at issue, and that the student "was removed from [s]chool for 'medically necessary home instruction due to anxiety and depression'" (id. at pp. 7-8).  The IHO then found that the district's reasoning in not evaluating the student due to his academic performance was flawed because the district maintained an obligation to identify students "in need of special education even though they are advancing from grade to grade" and the district denied the student a FAPE for the 2022-23 school year (id. at pp. 6-7). Regarding the July 2024 CSE's eligibility determination, the IHO found that the district had "merely conducted a social history review" in preparation for the meeting and that, "[d]espite a private evaluation which recommended an IEP, the [district] failed to classify the Student with a disability" (id. at pp. 8-9).  The IHO concluded that the district also failed to comply with its child find obligations for the 2023-24 and 2024-25 school years, having already determined that the district failed to comply with its child find obligations for the 2022-23 school year (id. at pp. 7, 9).

On the issue of the appropriateness of the parents' unilateral placement, the IHO determined that the "[p]arent[s] submitted ample evidence" that Quad Prep provided the student with instruction designed to meet his educational needs (IHO Decision at p. 10).  The IHO reviewed the educational program provided at Quad Prep, citing testimony of the school social worker regarding the types of students accepted into Quad Prep and how all classes at Quad Prep consist of no more than seven students, with 1:1 instruction in core academic classes (id. at pp. 10-11).  The IHO cited the testimony of the school social worker that the student had difficulties self-regulating when he started at Quad Prep and needed the school's supportive environment so that he could "access his intellectual strengths while being supported in his areas of need" (id.).  Based on the foregoing, the IHO found that the parents met their burden to prove that Quad Prep was an appropriate unilateral placement (id. at p. 11).

Next, the IHO concluded that equitable considerations weighed in favor of the parent, noting the parents' cooperation and communication with the district about their concerns as well as their incurring an obligation to pay Quad Prep (IHO Decision at p. 12).  After finding the parents were entitled to funding or reimbursement for the cost of the student's tuition at Quad Prep, the IHO addressed additional relief and found that the parents were entitled to reimbursement for the independent neuropsychological evaluation and the continuation of round trip door-to-door transportation to and from Quad Prep (id. at pp. 12-13).  The IHO ordered the district to directly pay or reimburse Quad Prep for the cost of the student's tuition for the 2024-25 school year in an amount up to $104,280, reimburse the parents for the cost of the privately obtained neuropsychological evaluation at the evaluator's regular and customary rate, and, within 15 days after receipt of the neuropsychological evaluation, convene a CSE to "develop an appropriate IEP for the [s]tudent" (id.).

IV. Appeal for State-Level Review

The district appeals, asserting that the IHO erred in finding that it failed to comply with its child find obligations and denied the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years.  The district addresses each school year separately and argues that for the 2022-23 school year the student's grades remained high and his social/emotional issues never rose to the level where they affected his academic performance.  According to the district, the IHO focused on the public school principal's awareness of the student's sensory issues and sensitivity to noise without evidence that this had any impact on the student's academics.  For the 2023-24 school year, the district noted that the student achieved high grades while his social/emotional issues were addressed without an IEP in a general education class and the student's outbursts decreased by the end of the school year.  The district again argues that the student's social issues did not negatively affect his academic performance and that the IHO did not address whether the student's social issues or sensitivity to sound affected his academics.  Turning to the 2024-25 school year, the district asserts that it complied with the parent's referral of the student for an initial evaluation, that it was not required to adopt the recommendation of the private neuropsychologist and instead properly relied on the raw data contained within the evaluation report and that the CSE properly determined that the student did not require special education services.  Finally, the district argues that the IHO erred in directing the district to develop an IEP for the student after it had already determined the student was ineligible for special education services and that the IHO's order usurped the role of the CSE and constituted relief for the 2025-26 school year which was not at issue.

In an answer, the parents argue that the IHO was correct in determining that the district violated its child find obligations for all three school years.  Of note, the parents counter the district's assertion that the student's social/emotional issues did not impact his academic performance by highlighting the IHO's finding that, in spring 2023, the student was unable to attend school due to anxiety and depression.  The parents also reference testimony of the student's teachers, which the parents believe showed an obligation on their part to refer the student for special education during the 2022-23 and 2023-24 school years.  With respect to the 2024-25 school year, the parents assert that the district had the obligation to conduct its own evaluation of the student, noting that at the time of the referral and social history evaluation, the district did not yet have a copy of the neuropsychological evaluation report.  According to the parents, both the neuropsychological evaluation and the district's social history evaluation indicated that the student should have been classified.

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]).[5]

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. Child Find

At the outset, the crux of the parties' dispute is whether the district violated its child find obligations by not evaluating the student to determine his eligibility for special education during the 2022-23 and 2023-24 school years.

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]).  The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]).  The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]).  To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094).  A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]).  To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225).

A district's violation of its child find obligation a procedural violation of the IDEA (see Mr. P, 885 F.3d at 750; D.K., 696 F.3d at 249; D.A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 [5th Cir. 2010]; Bd. of Educ. of Fayette Cty., 478 F.3d at 313; see also Handberry, 446 F.3d at 347).  As one district court explained, "the IDEA is not an absolute liability statute and the 'Child Find' provision does not ensure that every child with a disability will be found" (A.P., 572 F. Supp. 2d at 225).

According to the parent's testimony, the student suffered from "cognitive rigidity and lack of self-awareness, often hyper focusing on specific topics of interest to him to the detriment of his ability to develop relationships with others" (Parent Ex. V ¶ 8).  In addition, the student had difficulty with social cue awareness relating to peers and unexpected changes to his routine and he was hypersensitive to noise and large crowds (id.).  The parents reported that the student had experienced "bullying incidents" during the 2021-22 school year and the parent testified that she had met with the district public school's principal "in person several times" with regard to the district's investigation and follow through (id. ¶¶11, 12).

The parent testified that the student's social/emotional difficulties increased during the 2022-23 school year (Parent Ex. V ¶ 13).  According to the parent, the student had difficulty focusing during class due to the large class size and was frequently distracted by his classmates' behaviors, which, when the student asked them to stop, "caused them to mock him, and engage in escalating disruptive behaviors in order to provoke him further" (id.).  By the middle of the school year, the student "was bringing ear plugs to school every day so that he could focus on his assigned schoolwork" (id.).  The parent stated that, as a result of the "ongoing bullying, throughout this time [the student] suffered from heightened anxiety, significant stress, and constant depression," and "episodes involving emotional dysregulation increased significantly" and the student began to "experience suicidal ideation" (id.).[6]

In a February 8, 2023 email to the student's teachers, the parents expressed concerns regarding what the parents described as "taunting behavior" by the other students in the class (Parent Ex. K).  According to the parents, the student was suffering from "extreme anxiety and depression" and had a panic attack in the lunchroom causing him to have to exit the lunchroom and calm down in the guidance office (id.).  Although the hearing record does not include a specific response to this email, the school principal testified that, prior to March 13, 2023, the parents were given forms to fill out in order for the district to be able to provide the student with a 504 plan, but the parents never completed the forms (Dist. Ex. 14 ¶ 15; see Dist. Ex. 8).  The hearing record also indicates that the district scheduled a meeting with the parents for March 27, 2023 "to discuss 504s and other possibilities" (Dist. Exs. 6; 7).

The public school principal testified that the school's child find policies were "based on student's academic skills" and that a student would be referred for either an IEP or a 504 plan if there were "consistent social-emotional or behavioral issues that negatively affect[ed] the student's academic performance" (Dist. Ex. 14 ¶ 9).  According to the principal, the student achieved high grades in all academic subjects as reflected in his report card (id. ¶ 10; see Dist. Ex. 5).  The principal also testified that the school made accommodations for the student allowing him to eat lunch in her office with his friends and that the student "would vent" to the school guidance counselor, who worked with the student on understanding social cues and social situations better (Dist. Ex. 14 ¶¶ 11, 13).

According to the school principal, during the March 27, 2023 meeting between school staff and the parents, both an IEP and a 504 plan were discussed (Tr. p. 51).  The principal did not attend the referral meeting nor did the hearing record include minutes from the meeting; however, the principal testified that it was her "understanding," based on "what [the team] reported back from the meeting," that the parents were not interested in an IEP at that time (Tr. pp. 51, 67).  The principal testified that "it was communicated to [the student's] parents they had the option to submit a referral letter if they wanted" (Dist. Ex. 14 ¶ 17).  Further, the principal noted it was reported back to her that the team discussed the CSE process during the March 2023 meeting and "one of the parents stated that he didn't want a label" on the student (Tr. p. 68).  When asked during the impartial hearing if the district had given the parents a "consent form for initial evaluation for an IEP" the principal replied that she did not know (Tr. p. 51).  The principal stated that the 504 plan was discussed and "that was the understanding" that they would "move forward with that" (Tr. p. 68).  In addition, the principal stated that the team's "interpretation of the parents' thoughts w[as] that they felt [the student] would do well in middle school with a fresh start in a new school and the opportunity to find like-minded peers" (Dist. Ex. 14 ¶ 17).

In or around April 2023, the student was removed from the public school and received home instruction for the remainder of the 2022-23 school year (Parent Ex. V ¶ 14; Dist. Ex. 14 ¶ 18).  According to the parent, with the assistance of the student's psychiatrist, the parents applied for the district's "Medically Necessary Home Instruction Program," the application was promptly accepted, and the student stopped attending school in person and received instruction from a district teacher at home for the remainder of the school year (Parent Ex. V ¶ 14).  During the hearing, the public school principal confirmed that the parents had requested "medically necessary home instruction due to anxiety and depression" (Tr. p. 52).

The student completed the 2022-23 school year passing all of his classes with a score of "4" in each graded subject indicating the student excelled in standards (Dist. Ex. 5).[7]

The parent testified that, prior to the start of the 2023-24 school year (sixth grade) at a new district school, the parents met with school personnel to "share [their] concerns regarding [the student's] mental health struggles, as well as the bullying he had experienced during 2021-2022 and 2022-2023 school years, [and] to proactively request support and assistance from the school administration and teaching staff" (Parent Ex. V ¶ 16).  The parent reported that school personnel provided the student with accommodations of access to the school's new mediation room for him to eat lunch in, "to avoid the noise and chaos of the large cafeteria," and when in crisis, access to social work intervention (Parent Ex. V ¶ 16; Dist. Ex. 4 at p. 1).

During the 2023-24 school year, the student "was able to consistently complete his classroom assignments at a highly proficient level (including being able to complete assigned homework for the day), well in advance of the other students, and, as such, was allowed to sit and read books of his choice during his down-time once he had run out of classroom work and homework to do in school" (Parent Exs. B at p. 14; V ¶ 16).  The parent testified that, despite the aforementioned accommodations, the student continued to be a victim of several harassing bullying incidents which exacerbated his anxiety, depression, panic attacks, and instances of school refusal throughout the 2023-24 school year and that the district "disregarded" the parent's concerns to obtain supports for the student (Parent Ex. V ¶¶ 16-17).[8]  The parent testified that, as "a result of this additional ostracization," the student withdrew further from the other students and "continued to struggle with worsening depression, often demonstrating signs of anxiety and heightened vigilance" even at the new school (id. ¶ 16).

In contrast to the parent's testimony as to what occurred during the 2023-24 school year, the student's math teacher testified that the student had a good rapport with the school guidance counselor who worked with him regularly, the student was accommodated by allowing him to have lunch at the school's mediation center, and instances of bullying were addressed by removing two students from his classes and placing them in other classes (Dist. Ex. 15 ¶¶ 7-8).  The teacher further testified that the student never had issues with completing assignments or refusing work and that there was no indication his disabilities or social/emotional issues interfered with his academics (id. at ¶¶ 10-11).  The math teacher also testified that the student exhibited outbursts which she described as being argumentative when he got things wrong and he would, sometimes, throw his book or pencil on the floor or "get loud" (Tr. pp. 122-24; see Dist. Ex. 3 at pp. 2-3).  However, she explained that, towards the end of the school year, the student had "less" outbursts (Tr. pp. 126-27).

With respect to the district's provision of supports informally, States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]).  Although this type of consideration normally arises in situations where a student is struggling academically and Academic Intervention Services or a Response to Intervention may be implemented with a student to help determine if the student needs special education services (8 NYCRR 200.4[a]; see also 8 NYCRR 100.1[g]; 100.2[ii]), in this instance, the student was not experiencing academic struggles and the district's responses appeared tailored to the student's specific situation by providing a quiet room for lunch and supports for social/emotional challenges the student was facing.

However, the district's explanation for pursuing services pursuant to a 504 plan does little to avoid a finding of a child find violation, if the student was eligible for special education, as a district has no flexibility to opt to provide services and accommodations under section 504 when the student is eligible for special education under the IDEA; rather, a district must comply with both statutes (Yankton Sch. Dist. v. Shramm, 93 F.3d 1369, 1376 [8th Cir. 1996]).  Compliance with both statutes requires that the district satisfy its child find obligation under the IDEA notwithstanding that a student is receiving services pursuant to a 504 plan (see Application of a Student with a Disability, Appeal No. 17-042 [noting that a "district's 'wait and see approach'" could "cut the parent out of the process of determining whether to move forward with the referral and initiate an evaluation or to determine whether the student would benefit from additional general education or section 504 support services as an alternative to special education"]).

Further, as students with disabilities are disproportionately affected by bullying, circumstances involving a student being bullied who has not previously been identified as a child with a disability under the IDEA may trigger a school's child find obligations under the IDEA (Dear Colleague Letter, 61 IDELR 263 [OSERS/OSEP Aug. 2013]; see Krebs v. New Kensington-Arnold Sch. Dist., 2016 WL 6820402, at *6 [W.D. Pa. Nov. 17, 2016] [denying a motion to dismiss the parent's child find claim relating to allegations that the district failed to evaluate a student despite having knowledge of her declining grades, self-harming behaviors, "multiple diagnoses and harassment at the hands of her peers"]).

Notwithstanding the above, the only relief at issue on appeal is the IHO's orders for the district to fund or reimburse the parents for the costs of the student's unilateral placement at Quad Prep for the 2024-25 school year and for the CSE to reconvene to reconsider the neuropsychological evaluation report and develop an appropriate IEP for the student (IHO Decision at p. 14).[9]  As the parent referred the student for an evaluation of the student on June 12, 2024 and the CSE met on July 31, 2024 to determine the student's eligibility for special education (Dist. Exs. 1; 17), both prior to the time of the student's placement at Quad Prep for the 2024-25 school year, this is not a situation where the alleged child find violations are relevant to the relief sought by the parent.  Rather, the July 2024 CSE's determination that the student was not eligible for special education was the trigger for the parent's decision to place the student at Quad Prep (see Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 [2d Cir. 2021]).

Additionally, even if I were to accept, in total, the IHO's determination that the district had sufficient notice of the student's difficulties such that it overlooked clear signs of disability in not conducting an evaluation of the student during the 2022-23 or 2023-24 school years, the violation of the district's child find obligation would be a procedural violation of the IDEA (see Mr. P, 885 F.3d at 750; D.K., 696 F.3d at 249; D.A., 629 F.3d at 453; Bd. of Educ. of Fayette Cty., 478 F.3d at 313; see also Handberry, 446 F.3d at 347).  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]).

Generally, when a CSE has appropriately determined that a student was not eligible for special education services under the IDEA, and the student's parents were able to participate in that determination, any alleged procedural violation by the district does not result in a denial of FAPE to the student (D.K., 696 F.3d at 249-50; see A.P. v. Pearland Indep. Sch. Dist., 158 F.4th 672, 679 [5th Cir. 2025] [finding where a student did not qualify for special education services, the district could not "be penalized for alleged procedural errors in evaluating her eligibility for an IDEA program"]; D.G. v. Flour Bluff Indep. Sch. Dist., 481 Fed. App'x 887, 891-93 [5th Cir. 2012] [holding that "IDEA does not penalize school districts for not timely evaluating students who do not need special education"]; Alvin Indep. Sch. Dist. v. A.D., 503 F.3d 378, 384 [5th Cir. 2007] [finding consideration of alleged procedural errors of IDEA unnecessary when student was not eligible for special education services]; D.H.H. v. Kirbyville Consol. Ind. Sch. Dist., 2019 WL 5390125, at *6 [E.D. Tex. Jul. 12, 2019] [finding a school district does not violate the IDEA if it declines to provide special education to a student who does not need special education and does not qualify as a child with a disability under the IDEA]; see also A.P., 572 F. Supp. 2d at 225-26; Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 812 [5th Cir. 2003]).  Indeed, a procedural violation cannot qualify a student who is not eligible for special education in the first instance (R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 [9th Cir. 2007]).

Accordingly, the question in this matter concerns whether the student was eligible for special education as a student with a disability, and therefore eligible for receipt of a FAPE by the district.  The need for special education services under the IDEA must be addressed before it can be determined if substantive relief is warranted in the form of funding for any specially designed instruction delivered to the student at Quad Prep, otherwise there would be significant risk of elevating form over substance by providing special education services to a child merely because of a procedural error in the child find process.

B. Referral and Eligibility

The hearing record demonstrates that the parents' concerns continued after the conclusion of the 2023-24 school year, and the parents referred the student for an initial evaluation on June 12, 2024 and then sought and obtained a private neuropsychological evaluation of the student, which was completed on July 2, 2024 (Parent Exs. B; V ¶ 20; Dist. Ex. 17).

The July 31, 2024 CSE found that the student "[was] not eligible for special education services because [the student did] not have a disability as defined in Part 200 of the Regulations of the Commissioner of Education" (Dist. Ex. 1 at p. 1).

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]).

There was no indication by the July 2024 CSE of the criteria used in making its determination or of a specific classification category considered for the student (see Dist. Ex. 1).  Similarly, in rendering her decision, the IHO did not conduct an analysis as to any specific disability classification category that the student could have potentially been identified with, rather the IHO determined that "the [district] merely conducted a social history review" and "the [district] failed to classify the student with a disability" (IHO Decision at pp. 8-9).  Further, the parents also have not specified which of the thirteen possible classification categories they believe the student should be identified with either in their request for review or memorandum of law on appeal (see Answer; Parent Mem. of Law).

State regulations define the "terms used" in the definition of a student with a disability as (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]).

Given the student's diagnoses outlined above, the most relevant definitions the CSE could have considered would have been "Other health-impairment," "Autism," or "Emotional disability"; however, each of the three possible classifications for the student include the need for a determination that the disability has an adverse effect on the student's educational performance (8 NYCRR 200.1[zz][1], [4], [10]).  Accordingly, much of the parties' dispute on appeal is whether the student's educational performance was impacted by his disability such that he should have been classified as a student with a disability.  The district asserts that the July 2024 CSE correctly determined that the student was not eligible for special education because of his academic success, high cognitive levels, and because his social/emotional issues did not have a negative impact on his academics.  The parents assert that additional factors beyond grades, such as "attendance, homework completion, teacher feedback, and organizational skills" should be considered.  According to the parents, the student's inability to attend school in the spring of the 2022-23 school year and the student's social/emotional issues impacted his educational performance, referring to the 2023-24 school year teacher reports, which indicated the student struggled with impulsivity, became easily frustrated and argumentative, rarely socialized with peers, and exhibited outbursts in class.

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 student with a disabling condition such as an ADHD combined with a bipolar disorder has not been sufficient to confer eligibility for special education when a psychoeducational assessment showed that the student tested above grade level and the student's grades and test results demonstrated that she continuously performed well the in public school (C.B. v. Dep't of Educ. of City of New York, 322 Fed. App'x 20, 22 [2d Cir. Apr. 7, 2009]).

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]).

In this matter, the hearing record included the student's report card reflecting grades for all four quarters of the 2022-23 and 2023-24 school years (see generally Dist. Exs. 5, 13).  During the 2022-23 school year, the student predominantly and consistently received quarterly scores of 4 throughout the school year (according to the report card key a score of "4" indicated the student excelled in standards) (see Dist. Ex. 5)  Subsequently, during the 2023-24 school year in honors courses for English Language Arts (ELA), mathematics, social studies, and science, the student predominantly and consistently received quarterly grades of 93 or above throughout the school year with final grades ranging from 95 to 98 (see Dist. Ex. 13).  The student received a grade of 100 for each marking period in band and his overall final weighted average was 97.11 (id.).  Likewise, a spring 2024 measure of academic progress (MAP) growth report indicated that the student showed high achievement in math (96th percentile) and reading (98th percentile) indicative of high average growth (see Dist. Exs. 11; 12).

In the July 2024 neuropsychological evaluation report, the psychologist who conducted the evaluation indicated that the student was "highly verbose, asked numerous questions throughout the testing, had a lot of physical energy," and his "demeanor was quick to shift to irritability and frustration when he felt uneasy or insecure about his abilities, which happened often" (Parent Ex. B at p. 15).  As part of the evaluation, the neuropsychologist observed the student in his honors math class and indicated a "pattern of difficulty with frustration tolerance, adaptability, self-regulation, and social awareness:" (id. at p. 17).  The neuropsychologist determined that the student met the criteria for ADHD combined presentation, frontal lobe and executive function deficit, dysgraphia, autism spectrum disorder, major depressive disorder, moderate, and generalized anxiety disorder and recommended that the student be monitored for posttraumatic stress disorder (PTSD) (id. at pp. 1-4).[10]  The evaluator opined that, given the student's exceptional abilities in addition to his areas of emotional difficulty, he needed an "educational setting/school that focuse[d] on teaching and working with twice-exceptional students and offer[ed] a comprehensively supportive environment" and an IEP, noting "a referral for a child study evaluation should be made by his parents" (id. at pp. 4-5).[11]

When the July 2024 CSE convened, meeting participants included the parents, a school psychologist who also served as district representative, a school social worker, a general education teacher, and a related service provider/special education teacher (Dist. Ex. 1 at p. 9).  According to a review of the student's present levels of performance, the July 2024 CSE considered a social history interview, the July 2024 neuropsychological evaluation report, and classroom teacher reports for math, ELA, science, and social studies (id. at pp. 3-8).

Ultimately, the July 2024 CSE determined that the student was not eligible for special education services (Dist. Ex. 1).  The school psychologist, who presided over the July 2024 CSE meeting, testified by affidavit that the district had not conducted "its own evaluations because the raw data from the independent neuropsychological evaluation as well as the teacher reports provided sufficient data to make a determination" (Dist. Ex. 16 ¶ 10).  Further, she indicated that the "eligibility team agreed with the raw data of the neuropsychological evaluation" but "disagreed with [the] recommendations based on the raw data" (id. at ¶ 12).  The psychologist testified that she did not recall specifically discussing the diagnoses that the student had received but rather the parents "main concern" at the meeting was the issue of the student being bullied (Tr. pp. 146-150; Dist. Ex. 16 ¶ 13).  According to the school psychologist, issues related to bullying could be remedied in a general education setting in a community school without an IEP in place and the student could work with a social worker or guidance counselor to address social/emotional difficulties (Dist. Ex. 16 ¶ 13).

A review of the July 22, 2024 social history report conducted by a district social worker indicated that the parent reported that the 2023-24 school year had been a difficult transition for the student "because the students that bullied him were also in this school," and the student's "behavior of perceptual danger trigger[ed]" him (Dist. Ex. 4 at p. 1).  The parent also reported that the school had offered and accommodated the student when he was in crisis by offering a safe room and social work intervention (id.).  The social history report noted that the student was able to be redirected, was comfortable around adults and was able to maintain a conversation but had difficulty establishing relationships and engaging in age-appropriate interests with same-age peers (id. at p. 2).  The social worker indicated that during the social history interview, the student listened to the conversation and expressed his fears of bullying, which had "negatively impacted him" (id.).

The student's math teacher for the 2023-24 school year testified that the student was efficient when working and was "very motivated to do his work" (Tr. pp. 85-86).  She noted that the student's class worked a "little slower than his pace" and she gave him extra work or extra problems which he still completed in time (Tr. p. 86).  She described the student as a "little bit of a loner" as he did not "really want to make friends," which "actually came out of his mouth a couple of times" (Tr. p. 94).  The math teacher testified that she did not observe any bullying of the student during the 2023-24 school year but she did learn that there were students who were in "the parents['] and [student's] eyes," bullies to the student (Tr. p. 101).  Further, the math teacher indicated that two students that the student had difficulties with historically were removed from his classes to accommodate him (Dist. Ex. 15 ¶ 8).  To support the student's social/emotional needs, the teacher indicated that the student was able to see the social worker as needed if he was "having any issues" or was bothered and the district let the student eat lunch in the mediation center where "the school psychologist would discuss how his day went and any issues that upset [the student] during the day" (Tr. p. 87; Dist. Ex. 15 ¶ 7).  She also indicated that the student had "good rapport with the social worker . . . who he regularly worked with" (Dist. Ex. 15 ¶ 7).  The math teacher stated that, at the beginning of the school year, she tried to push him to go to lunch with everybody else as she wanted him to socialize (Tr. p. 104).  However, the student preferred to eat in the mediation center, which the math teacher testified had up to five students in the room and, therefore, the student did not eat by himself (Tr. p. 105).

A review of the reports completed by the student's teachers in preparation for the July 2024 CSE meeting show that the student was performing at or above grade level in all subjects with the teachers indicating the student finished classwork quickly and that work appeared to be too easy for the student (Dist. Ex. 3 at pp. 1-2, 4-5, 7, 10-11).  However, the teachers indicated that the student exhibited behaviors including outbursts and that the student socialized more with adults than with peers, indicating the student preferred working alone and did not enjoy group work (id. at pp. 2-3, 5, 8-11).  Nevertheless, review of the progress reports and the student's report card do not indicate that the student's struggles with associating with his peers impacted his academic performance (Dist. Exs. 3; 13).

Overall, it is evident from this hearing record that the district attempted to address the student's social/emotional needs and issues with bullying and, objectively, the student continued to excel academically in the district public schools during the school years leading up to the CSE meeting.  As discussed above, in assessing whether a student's disability affects the student's educational performance, academic considerations are paramount; however, the analysis may encompass factors beyond grades (such as considerations related to the student's attendance, homework, and organization) yet there must be an effect beyond social/emotional needs that have not necessarily translated to academics (see, e.g., S.B., 2022 WL 4134457, at *12; M.N., 2016 WL 4939559, at *11-*13; M.M. v. New York City Dep't of Educ., 26 F. Supp. 3d 249, 255-57 [S.D.N.Y. 2014]; Maus, 688 F. Supp. 2d at 294; A.J., 679 F. Supp. 2d at 308-11; see also Letter to Anonymous, 55 IDELR 172 [OSEP 2010]).

Here, while the hearing record does indicate that the student was placed on medically necessary home instruction due to anxiety and depression at the end of the 2022-23 school year and had some notable but variable absences during the 2023-24 school year (see Parent Ex. C at p. 1; Dist. Exs. 5; 13),[12]^, [13] the student completed the 2023-24 school year with a weighted average over 97 and, in the two classes the student was most absent from, he obtained a 95 in ELA and a 98 in math (Dist. Ex. 13).  Accordingly, at the time of the July 2024 CSE meeting, the student was excelling academically and absences were not impacting his academics.  Likewise, although the parents had concerns about bullying incidents affecting the student socially and emotionally, the student was, nevertheless, performing at a high level academically.  Thus, the hearing record supports the conclusion that the CSE properly found that the student's difficulties did not have an adverse impact on his educational performance and the student did not have a need for special education.  Further, the hearing record indicates, as reflected above, the district had informal accommodations in place for the student in response to the parents' concerns regarding bullying and his social/emotional needs.  Therefore, the IHO erred in finding that the CSE should have concluded that the student met the criteria for eligibility as a student with a disability.

VII. Conclusion

Having found that the July 2024 CSE appropriately deemed the student ineligible for special education, the student was not entitled to a FAPE for the 2024-25 school year, and there is no need to reach the issue of the appropriateness of the unilateral placement or whether equitable considerations weighed in the parents' favor.  In addition, as the student was not eligible for special education, any procedural violation arising from the district's failure to initiate an evaluation of the student during the 2022-23 or 2023-24 school years did not deny the student a FAPE.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO decision dated March 7, 2025 is modified by reversing those portions which found that the student was eligible for special education, and that awarded reimbursement or direct funding of the costs of the student's tuition at Quad Prep and directed the district to reconvene a CSE to review the results of the July 2024 neuropsychological evaluation report and develop an IEP for the student.