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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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In the Matter of the Application of C.B. on

Behalf of Z.G., her minor child 07 Civ. 3419 (AKH)

Plaintiff,

 -againstDEPARTMENT OF EDUCATION OF THE

CITY OF NEW YORK,

Defendant. 

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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT 

 OF HER MOTION FOR SUMMARY JUDGMENT

1. Preliminary Statement

Plaintiff submits this memorandum of law in support of her motion for summary

judgment.

2. Procedural History

This matter arises pursuant to the Individual with Disabilities Education Act

 (hereinafter “IDEA”) 20 U.S.C. §1400 et. seq. (2006). The parents on behalf of Z.G.

submitted a request for an impartial hearing because the Department of Education of the

City of New York (hereinafter “DOE”) at an Individual Educational Plan (hereinafter

“IEP”) meeting held on January 23, 2006, refused to classify Z.G. handicapped, despite

the fact that she has been diagnosed with a very severe case of bipolar disorder and a comorbid diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). As a result of

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DOE’s refusal to designate Z.G. as handicapped, Z.G. was referred to a general education

program. Thus, she was not eligible for any support services whatsoever.

Because the IEP team refused to designate Z.G. as handicapped and eligible for

services, the parents on behalf of Z.G. requested an impartial hearing, dated January 25,

2006. An Impartial Hearing was held on May 5, 2006 and June 2, 2006 to determine the

issue of eligibility and tuition reimbursement for Z.G.’s attendance at the Dalton School

for the 2005-2006 school year. The finding of fact and decision was rendered on

September 11, 2006. 

At the Impartial Hearing, Hearing Officer Jason Stern (HO) carefully weighed the

evidence before him and testimony heard and determined that the DOE should have

classified Z.G. as a child with a disability. Specifically, Hearing Officer Stern found that

Z.G. was Other Health Impaired (hereinafter “OHI”) due to her bipolar disorder affecting

her education. HO Stern accepted the credible testimony of Z.G.’s witnesses that Z.G.

needed extensive and comprehensive systems of interventions provided at Dalton

including a special educational consultant, an on-site psychologist, an on-site full time

nurse, and extensive one to one intervention by Z.G.’s teacher. HO Stern also determined

that Dalton was an appropriate placement but only with the comprehensive system of

interventions that have allowed her to succeed academically. Finally, H.O. Stern

concluded that the equitable considerations supported the parents, that Z.G. had attended

public school from kindergarten through third grade and only removed her from public

school following a severe manifestation of her mental illness and based on the strong

advise of her doctors. Z.G. repeated third grade at Dalton due age requirements at Dalton

and attended fourth grade and the parents did not seek tuition reimbursement for those

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years. Thus, HO Stern granted the parent’s request for tuition reimbursement for the 2005-

2006 school year. (SRO Exhibit 1)

 Thereafter, on or about October 13, 2006, the DOE appealed the decision of the

IHO claiming that the C.S.E. was correct in not classifying Z.G. as handicapped because

she had tested well on standardized tests and was not failing any subjects. DOE claimed

that the decision to send Z.G. to Dalton was based on the parents desire to send their child

to a prestigious private school. 

The parents sought to affirm the decision of the hearing officer as the decision of

HO Stern was correctly decided. The parents opined that they initially sought to send their

daughter to private school on the advise of Z.G.’s psychiatrist, and they continued to send

their daughter to Dalton because it had created an appropriate and comprehensive support

system which allowed their daughter to succeed despite her profound mental illness. 

On January 3, 2007, the State Review Officer (SRO) reversed the decision of IHO

Stern determining that the CSE was correct in its decision not to classify Z.G. as

handicapped despite the uncontroverted evidence that Z.G. suffers from severe bipolar

disorder co-morbid with ADHD. As a result of the decision, Z.G. is not entitled to any

support services whatsoever or intervention strategies. She is only entitled to a general

education program.

On April 10, 2007, plaintiff filed the instant case seeking to annul the decision of

the SRO and to reinstate the decision of the Impartial Hearing Officer.

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QUESTIONS PRESENTED

1. Where a two tier system of review has been established, must the Court

strictly defer to the appellate administrative decision maker whose decision is against the

weight of evidence or may deference be given to the initial administrative decision maker

(similar to a trial judge) who assesses the credibility of the witnesses, possesses expertise

in the field of education, and who makes findings of facts and conclusions of law.

2. Whether the impartial hearing officer, correctly determined that Z.G. who is

suffering from a severe bipolar disorder co-morbid with ADHD, should be classified with

a disability as Other Health Impaired and thus entitled to special services to remediate

Z.G.’s specific disability.

FACTUAL STATEMENT

Z.G. attended a gifted program at P.S. 16 from Kindergarten through third grade. 

She had qualified for the program based on her performance on a standardized test. 

(Transcript, p. 80) Although she received good grades on her report card in third grade,

(2003-2004), Z.G.’s behavior changed. She exhibited extreme agitation, psychosis,

suicidal ideation and violent behavior. (Transcript, p. 80-81) During third grade, Z.G.

was late and absent for a total of 77 days. (Exhibit 16)

 Z.G.’s third grade teacher observed that she was easily distracted during school. In

public school, Z.G.’s symptoms of bipolar deteriorated. Z.G. was experiencing problems

with sleeping, tantrums, anxiety, obsessions and oppositional behavior. (Transcript p. 69) 

She was extremely agitated. She was in constant rages, suicidal ideation, hypo manic

episodes, talking nonstop, weeping and laughing interchangeably. (Transcript p. 80-81) 

Z.G. was anxious and terrified to go to public school. She was disorganized, and did not

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know what was going on. (Transcript p. 82)

In December 2003, Z.G. was diagnosed with severe bipolar disorder with ultrarapid cycling. (Transcript p. 16, 80, and Exhibit C) Bipolar is a neurobiologically based

disorder in which the neurobiological system is deregulated. This means sleep, attention,

mood, emotions, self-esteem are all irregular and the system does not have the natural

means to re-regulate itself. . (Transcript p. 17) A child and adolescent suffering from

bipolar illness manifest the illness by having period of mania and depression. (Transcript

p. 17) In periods of mania, Z.G. was overactive and could not regulate her thoughts. 

This is commonly referred to as racing thoughts. Other symptoms, which Z.G. suffers

from, are anger, which can be difficult to control, poor sleep and extreme anxiousness. 

(Transcript p. 17,23) Also, Z.G. received a co-morbid diagnosis of Attention Deficit

Hyperactivity Disorder (ADHD). (Exhibit “B”) Z.G. has symptoms of ADHD, non

attentive type that manifest itself through a lack of focus, and a difficulty sitting still.

(Transcript p. 17)

Z.G. has a very severe case of bipolar disorder because she has ultra, ultra rapid 

cycling and also has symptoms of a mixed state. Ultra, ultra rapid cycling means that

Z.G.’s mood can swing from moment to moment and because she is in a mixed state she

can also be suffering from very depressive thoughts. (Transcript p. 18-20)

Bipolar disorder affects Z.G.’s ability to process new visual and verbal information. 

(Transcript p. 25) For example, racing thoughts compete with Z.G.’s ability to focus and

depression may make it difficult for her to get motivated. (Transcript p. 26) Z.G.’s mood

shifts many times within a short period of time. Z.G. exhibited symptoms of severe

depression one minute and become manic within minutes of the depression. (Transcript p.

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18) 

Z.G.’s parents sought assistance from the school psychologist at P.S. 166, but were

rebuffed. (Transcript p. 86-87) The parents were not even informed by the DOE that DOE

provided special services to children who are classified as handicapped based on their

special needs. (Transcript p. 90-93) In order to stabilize Z.G.’s moods and alleviate the

symptoms of the mental illness, Dr. Gibanni Faedda, Z.G.’s psychiatrist, prescribed

psychoactive mediation. (Exhibit C) In addition to the psychopharmacological

component, Z.G. began weekly sessions with a private psychologist, Dr. Nancy Austin.

(Transcript p. 14) (Exhibit C)

In May 2003, Dr. Faedda, a psychiatrist that specializes in bipolar disorder, strongly

recommended (insisted) that Z.G. attend a private school, or in the alternative, that she be

home schooled. (Transcript p. 88, 90-92) Dr. Fraedda’s recommendation was based, in

part, on DOE’s inattention to Z.G.’s special needs, which was a cause of significant stress,

which in turn was exacerbating her condition to the point that Z.G. became at risk for

suicide. (Transcript p. 81-82) The parents embarked on a search to find an appropriate

school that could provide the necessary support and intervention. (Transcript p. 89)

In September 2003, the parents enrolled Z.G. at the Dalton School where she has

remained to date. She had to repeat third grade due to the age requirements at Dalton. 

During October 2005, while a fifth-grade-student at Dalton, Z.G.’s parents referred their

daughter to the CSE of Region 9 shortly after they learned that the DOE has an obligation

to provide a free and appropriate education to students with disabilities. On January 23,

2006, the CSE convened to discuss Z.G.’s educational program. Present at the meeting

were Z.G.’s mother, Dr. Austin, Ms. Terpening (Z.G.’s teacher), and CSE representatives. 

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(Exhibit 11) The parents provided the CSE Committee with several reports including

reports by Dr. Janet Jackson, an independent evaluator and Dr. Faedda, Z.G.’s treating

psychiatrist. (Exhibits B and C)

All of Z.G.’s representatives opined that Z.G. should be classified as handicapped and

receive special educational services. (Exhibits B and C) (Transcript p. 29, 30, 48, 49, 50-

52, 69, 107-08, 171-6, 348) Z.G.’s doctors and teacher had extensive experience treating

Z.G.’s bipolar disorder. (Exhibit C) (Transcript p. 14,, 16, 154-55, 161

Dalton created an individualized and comprehensive support system that would insure

that Z.G.’s academic’s needs would be met. (Transcript p. 157-161, 165-67, 170) As a

small school with only 100 students per grade, Dalton is flexible and tailors interventions

and supports to ensure that Z.G.’s needs are met. (Transcript p. 157-161, 165-67, 170)

For example, Z.G.’s fourth grade teacher moved up to fifth grade with Z.G. because the

Dalton recognized the additional stress that Z.G. would experience when she changed

school buildings and thus eliminated an additional stressor. (Transcript p. 161)

Dalton provided an educational consultant with special educational training to observe

Z.G. three times each week. Based on her observations of Z.G. and her expertise, the

educational consultant regularly conferred with Z.G’s teacher, Ms. Terpening, to devise

teaching strategies to meet Z.G.’s unique educational needs. (Transcript p. 160-61, 166)

Ms. Terpening regularly consulted with Z.G’s other teachers, psychologist, and 

parents to ensure that the interventions continued and that any problems that surfaced were

dealt with immediately. (Transcript p. 158, 160-161) Ms. Terpening provided extensive

redirection, and one to one emotional and academic support. (Transcript p. 158, 160-61)

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Dalton provided a full-time on-site psychologist who was available to meet with Z.G.

as needed. (Transcript p. 158) Dalton also employs a full-time nurse that monitors the

side effects of her medication. (Transcript p. 158) The nurse’s office is utilized as a place

for Z.G. to decompress when the symptoms of her mental illness become overwhelming.

(Transcript p. 192) 

Small class size is essential to Z.G.’s educational progress. (Exhibit B and C)

 (Transcript p. 29, 174) Dalton average class size is 19 children per class with many

specialty classes much smaller. (Transcript p. 161) According to the New York

Department of Information, average classes in Z.G.’s home school district have 25.2

students in 5th grade and 35.4 students in 6th grade. 

Z.G.’s ability to hyper-focus on challenging and engaging material actually prevents

psychiatric decompensation. (Transcript p. 26-29) Dalton offers an accelerated academic

program that meets Z.G.’s high academic abilities which in turn ameliorates the symptoms

of bipolar disorder. (Transcript p. 174-76) If the program is not challenging enough for

Z.G., she will lose the ability to focus, she may become anxious and the manic symptoms

will begin to take over. (Transcript p. 52, 89)

 Despite a profound mental illness, (bipolar) the CSE refused to classify Z.G. as

handicapped and recommended a general education program without any special services

or interventions by DOE. (Exhibit 11) Despite being gifted in many areas, Z.G. remains

fragile and needs small classrooms, positive reinforcement, one on one support as much as

practical, an opportunity for breaks, a place where she can decompress when her

symptoms take over enabling her to refocus, extra time in a quiet setting for testing and

access to a school psychologist at any time during school hours. (Transcript p. 29, 48-51)

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Since Z.G. has enrolled at Dalton, she has stabilized. (Transcript p. 108) Dalton is

academically appropriate, with a tremendous amount of one on one support, an open door

to counseling anytime with the school psychologist, a learning specialist that attends class

three times a week to offer teaching strategies, and the nurse’s office to let her decompress

when her symptoms manifest itself. . (Transcript p. 113-114, 122-23, 156-57) Dr. Faedda,

Z.G.’s treating psychiatrist who specializes in early onset of bipolar in children and

adolescents issue a report dated December 14, 2005 which states in relevant part: 

“In spite of considerable improvement, Z.G. remains impulsive, over-excitable, at

times inappropriate or aggressive, and can be demanding, bossy and rigid. Her uneven

academic and social functioning interferes with her education, and an individualized

educational program is needed to meet her needs. 

In spite of being extremely gifted in many areas, Z.G. remains fragile and can benefit

from attending smaller classes, increased 1:1 teaching, greater flexibility with

academic activities and increased support when her symptoms interfere with school

and social functioning. 

We hope that this information will help you confirm the medical necessity for

placement in an adequate school setting and the importance of continued treatment.” 

(Exhibit 9 and Exhibit C)

A report of Psychological and Neuropsychological testing prepared in January 2006 by

Dr. Janet E. Jackson, a psychologist, opined:

“Overall, Z.G.’s Bipolar Disorder is co morbid with Attention Deficit Disorder:

Inattentive Type. Highly discrepant scores among composite Scores on the WISCIV and within cognitive areas (e.g., Processing Speed) indicated that she might

experience some learning difficulties as she proceeds through school. ....... 

Although current medication may mitigate issues with attention and concentration

to some degree, Z.G. continued to respond impulsively. She needed to survey

visual information thoroughly and for longer time frames that some tasks

allowed....” (Exhibit 10)

 

Dr. Reinstein issued a visual information processing evaluation, dated 02/10/06. 

Dr. Reinstein concluded the following:

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“Convergence Insufficiency, Accommodative Insufficiency, Ocular Motor

Dysfunction and Mild Perceptual Dysfunction in Visual Closure.....

Z expends greater than 60% of her visual energy trying to keep her work clear and

single. She has great difficulty with her visual processing when her visual system is

stressed. . ..

Because of Z.G.’s extreme visual stress, I recommend that she receive extra time

on school exams and standardized testing. Z.G. would also benefit from a smaller

classroom setting. (Exhibit A)

There were times at Dalton, that Z.G. was very depressed, upset and crying

when she could not calm down. She would go to the school psychologist or visit the

school nurse to regain her composure. (Transcript p. 157) There were times at Dalton

that Z.G. became manic by exhibiting a fast speech pattern, going off on tangents, and

having a hard time controlling her outbursts. During these episodes, Z.G. needs a lot of

structure and support from her school to manage her emotions. (Transcript p. 158)

Z.G.’s teacher is in constant communication with Z.G.’s parents, her psychologist,

Dr. Austin as well as the school psychologist and school nurse. (Transcript p. 160) Z.G.’s

teacher spends about one hour a day in direct communication with Z.G. and her parents. 

She believes it is critical in treating Z.G. that everyone is on the same page. (Transcript p.

160-61)

Ms. Terpening believes that Z.G. has flourished at Dalton and produced brilliant work

but would not have been able to do so without the extensive support system in place. 

(Transcript p. 167). According to Ms. Terpening, Z.G.’s school teacher for the last two

years, Z.G. should not be placed in a New York City Public School without any support. 

She stated that it is “difficult to imagine”, she would “suffer on every level”, and her

social and emotional well being would be at a very dangerous level. (Transcript p. 174)

According to Ms. Terpening, Z.G. needs small classrooms, someone to check on her

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daily maintenance, organization, and assignments, a rigorous curriculum or she will zone

out and not engage. She needs nurse accessibility, school psychologist accessibility, and a

teacher support system. (Transcript p. 174-76) According to Ms. Terpening, she needs to

intervene two or three times a day to keep her on track. (Transcript p. 188) 

 OVERVIEW OF THE INDIVIDUALS WITH DISABILITIES IN

EDUCATION ACT

Congress enacted IDEA in “an ambitious federal effort to promote the education of

handicapped children. Board of Education v. Rowley, 458 U.S. 176, 179 (1982). Toward

that end Congress provides federal funds to those states that develop plans to assure “all

children with disabilities the right to a free appropriate public education. 20 U.S.C. ß

1412 (1). The “free appropriate public education” (FAPE) mandated by federal law must

include special education and related services tailored to meet the unique needs of a

particular child, 20 U.S.C. §1401 (a) (18) and be reasonably calculated to receive

educational benefits. Rowley supra at 207.

IDEA assures and provides all children with disabilities, FAPE. 20 U.S.C. §1400

(c) (3). An appropriate education program for a child with a disability begins with an

Individual Educational Plan (IEP), which is developed at a Committee on Special

Education Review Meeting, upon adequate notice to parents and with parental input. The

IEP is the blueprint for a child’s educational program for the school year. It must describe

her functional levels, educational strengths and weaknesses and establish annual goals and

short term objectives to be attained with the help of the special education services

identified to remediate the child’s specific disability. See 20 U.S.C. ß 1414

Parents who are dissatisfied with an IEP have the opportunity to present complaints

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regarding the identification, evaluation, placement, or provision of a free appropriate

public education to their child . 20 U.S.C. §1415 (b) (1) (E). Such complaints may be

resolved through an impartial due process hearing. 20 U.S.C. §1415 (b) (2).

The Supreme Court has held that a parent may seek tuition reimbursement for a

unilateral placement in a private school when the school district has failed to offer their

child FAPE. Burlington Sch. Comm. v. Massachusetts Department of Education, 471

U.S. 359 (1986) This was later extended by the Court to include private, non-approved

schools. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) The right to seek

tuition reimbursement was later codified in the 1997 amendments to IDEA. 20 U.S.C. . ß 

1412 (a) (10) (C) (ii).

ARGUMENT

1. A De Novo Review is Required and the Court Should

Give Great Weight to the Impartial Hearing Officer’s Decision Where

His Decision is Based on the Assessment of the Evidence Presented and

the Credibility of the Witnesses, and Where the Decision of the SRO is

Not Supported by the Evidence, is Unreasonable, and is Contrary to

New York State Law.

Under IDEA, the role of the Court is not an appellate role. In fact, the Court must

conduct a de novo review of IDEA administrative decision. See Walker County School

District v. Bennett 203 F.3d 1293 (11th Cir. 2000) cert. denied 531 U.S. 1059 (2000); In

fact, Section 1415 (i) (2) (B) states that “ in any action brought under this paragraph, the

court (i) shall receive the records of the administrative proceedings; (ii) shall hear

additional evidence at the request of a party; and (iii) basing its decision on the

preponderance of the evidence, shall grant such relief as the court determines is

appropriate Thus, the Court should receive the entire record of the proceeding in order to

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be able to conduct a de novo review. 

IDEA requires the Court to review the findings of the administrative proceeding

and base its decision on the preponderance of the evidence. Board of Education v. Rowley,

457 U.S. 176, 206 (1982). However, the provision that a reviewing court bases its decision

on the preponderance of the evidence is by “no means an invitation to the courts to

substitute their own notions of sound educational policy for those of the school authorities

which they review. “ Rowley supra at 296 Thus, the Supreme Court has further

established that due weight must be accorded to the administrative proceedings. 

The mandate to “give due weight” does not require a court to simply approve the

findings of an administrative agency. The Supreme Court amplified this precise point

when it stated:

“Congress expressly rejected provision that would have so severely restricted the

role of reviewing courts. In substituting the current language of the statute for

language that would have state administrative evidence, the Conference Committee

explained that courts were to make independent decisions based on a

preponderance of the evidence” citing S. Conf. Rep No. 94-455, p.50 (1975), U.S.

Code Cong. & Admin. News 1975, p.1503. See also 121 Cong. Record 37416

(1975) (remarks of Sen. Williams). Rowley supra at 205

The Second Circuit echoed the Rowley holding to wit: “two issues are relevant to a

federal court’s review of a challenged IEP: (1) whether the state complied with the

procedural requirements of IDEA and (2) whether the challenged IEP was reasonably

calculated to enable the child to receive educational benefits.” Rowley supra at 206-207

and Walczak v. Florida Union Free Sch. District, 142 F.3d 119, 129 (2nd Cir. 1998) 

While federal courts do not simply rubberstamp administrative decisions, they are

expected to give ‘due weight’ to these proceedings, mindful that the judiciary generally

lacks the specialized knowledge and experience necessary to resolve persistent and

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difficult questions of educational policy. Walczak supra at 129. 

The case at bar is complicated by the conflicting decisions of the IHO and SRO. 

The IHO held that Z.G.’s severe bipolar disorder impacted on her education and thus she

should be classified as Other Health Impaired and entitled to support services. The SRO

held that although she is suffering from bipolar disorder, her illness did not impact on her

education. Thus, SRO held that the DOE determination was correct when it designated

Z.G. non-handicapped and referred her to the general education program without any

support services.

Although some Circuits require deference to the final decision of the administrative

authority, other Circuits have held that it may be appropriate to defer to the initial decision

maker when his findings are based upon credibility determinations, unless the nontestimonial extrinsic evidence, or the record considered in its entirety would justify a

contrary decision. O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692,

698-99 (10th Cir. 1998) citing Carlisle Area Sch. V. Scott P., 62 F.3d 520, 529 (3rd Cir.

1995). But cf. Karl v. Board of Education of Geneseo C. Sch. Dist., 736 F.2d 873, 877 (2nd

Cir. 1984) reversing a District Court decision regarding student-teacher ratios held

appropriate by the Commissioner, the Second Circuit held that deference is due the

decision of the final decision maker “where such deference is otherwise appropriate”. If

the conclusion of the state review officer, or the impartial hearing officer is unsupported by

the record as a whole and incorrect as a matter of law, they simply do not merit deference. 

Mr. X v. N.Y.S. Educ. Dep’t, 975 F. Supp. 546 (S.D. N.Y. 1997) citing Evans v. Bd. Of

Educ. Of Rhinebeck Central Sch Dist., 930 F. Supp. 83 at 102 (S.D.N.Y. 2003) rejecting

the suggestion that deference is due to the SRO decision in the presence of a well-reasoned

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decision from the IHO and a SRO decision that failed to address the substantive

appropriateness of the IEP.

The IHO’s decision was based upon the documents and testimony presented with

determinations of credibility as to each of the witnesses. As explained below, the decision

of the SRO was not supported by the weight of the evidence, lacks rationality and quite

frankly lacks common sense. The SRO decision that a child who is suffering from a

severe case of bipolar illness with ultra ultra rapid cycling co morbid with ADHD and

visual processing issues somehow would not impact Z.G.’s processing of information

required in an educational setting is wrong and not rationally based.

Finally, New York State regulations pertaining to the impact of the SRO decision

requires that the decision not constitute binding precedent whatsoever. 8 N.Y.C.R.R. ß

279.12. Section 279.12 states:

Section 279.12 Decision of State Review Officer.

 ?

(a) The decision of the State Review Officer shall be based solely upon the

record before the State Review Officer and shall be final, unless an

aggrieved party seeks judicial review. The decision of the State Review

Officer shall be binding upon the parties and the State Education

Department with respect to the provision of special education to the student

with a disability involved, but shall not constitute binding precedent in

any judicial action or proceeding or administrative appeal in any

forum whatsoever. (emphasis supplied)

New York State law requires the SRO decision not be given any precedent value

“whatsoever”, Thus, New York State law requires that no weight be given to the decision. 

To give the SRO decision some weight, would in turn give the SRO decision some

precedent value, and would thus be contrary to the plain language of “whatsoever”

language set forth in its own regulations. 

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SRO KELLY IS BIASED AND THUS HIS DECISION IS

ENTITLED TO NO WEIGHT

IHO Stern found that DOE did not offer Z.G. a free and appropriate education. 

However, SRO Paul Kelly overturned the decision of IHO Stern holding that a child

suffering from a profound case of bipolar disorder co morbid with ADHD is not

educationally handicapped. Thus, Z.G. was not entitled to any support services, and Z.G.

was assigned to general education.

SRO decisions have uniformly favored the District. Between 2006 and March

2007, only five of forty-three cases to which the IHO ruled in favor of the parents were

upheld on appeal when the School District appealed. Thirty-seven out of thirty-nine

consecutive case favored the School District completely. SRO Kelly manages the office

is responsible. His management has led to a number of attorneys resigning in protest

since the office is not following the law. (See Sun Article attached to memorandum as

Exhibit “A”).

Thus, the SRO decision is not entitled to any weight and the IHO decision should

be given weight in the Court’s deliberation.

2. The IEP was Procedurally Defective Because DOE Predetermined that

it was Not Going to Classify B.G. Educationally Handicapped as

Evidenced by the Fact that it Failed to Involve the Parents, Teacher

and Her Doctors in the Creation of the IEP

It is respectfully submitted that the DOE members of the CSE team predetermined

the outcome of the IEP solely based on Z.G.’s test scores and grades at Dalton. This

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conclusion is reached because the DOE members of the CSE team did not allow any real

input from the mother, teacher and Z.G.’s doctor. 

The IEP produced at the CSE meeting was procedurally deficient in that it failed to

involve the parents and her doctors in the creation of their daughter’s IEP. The DOE has

the obligation to involve them meaningfully in the IEP development process and may not

seriously infringe on the parent’s participation in the creation or formulation of the IEP. 

Application of a Child with a Disability, Appeal No. 05-087 (internal citations admitted);

Also see 8 NYCRR 200.5. When the procedural violation is significant, it causes a denial

of FAPE. Application of a Child with a Disability, Appeal No. 05-087.

Here, although Z.G.’s mother was present at the meeting, she was not afforded a

meaningful opportunity to participate. Z.G.’s mother testified that the CSE failed to elicit

from her critical information including but not limited to what Z.G. needed as a result of

these evaluations at the meeting (Transcript p. 95-96); a description of Z.G.’s experience

when she was in public school (Transcript p. 96-97); why the parents removed Z.G. from

public school (Transcript p. 96-97); why Z.G. had been seeing a therapist for more than

two and half years (Transcript p. 96-97); and whether she agreed with the non-handicapped

classification. (Transcript p. 101). Further, Ms. Terpenning(Z.G.’s teacher for two years)

and Dr. Austin (treating psychologist) were not asked pertinent questions by the CSE

including whether each agreed with the classification on non-handicapped. (Transcript p. 

44, 102, 173)

The CSE effectively stifled any meaningful participation as the mother described

the tenor of the meeting under direct examination:

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MR ROSENBERG: Did you feel that there was a free flow of thought

between the members of the committee, yourself, your daughter’s teacher and her

therapist.

MS. BERTHEZENE: Absolutely not . . . All of testimony of testimony of

the teacher . . . was immediately countered by Giselle Jordan saying, well, this is

this so that can’t be important. (Transcript p. 97-98)

Therefore, the testimony reflects that despite their presence at the CSE meeting, the

parents, along with any person advocating on behalf of Z.G., were not afforded a

meaningful opportunity to participate in the creation of the IEP. This is because the DOE

members relying on Z.G.’s test scores and grades were not going to designate Z.G.

educationally handicapped under any circumstances. The DOE members were not

interested in the significant educational interventions by Dalton and her parents that were

necessary in order to have Z.G. succeed. They were not interested in any input from the

mother, Z.G’s doctors and teacher because the DOE members had predetermined the

outcome of the IEP. This procedural violation is substantial and is a denial of FAPE. 

Therefore, the IEP is procedurally invalid and should be nullified. 

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3. The SRO Incorrectly Held that Z.G. Was Not Educationally

Handicapped and Thus Entitled Only to a General Education Program

Without Any Support Services When it was Uncontroverted that Z.G.

was Suffering From Severe Bipolar Disorder With Ultra Ultra Rapid

Cycling Co Morbid with ADHD and Had Visual Processing

Impediments. 

a. Without an IEP, There is Nothing.

DOE argues that schools have psychologist and nurses and that much of the

intervention strategies employed with Z.G. can be done without necessity of an IEP.

This argument rings hollow and misleads the Court (as it misled the SRO) or in the

alternative, reflects a fundamental lack of knowledge regarding education law.

Without an IEP in place designating Z.G. “Other Health Impaired” and setting

forth the services that are to be provided, DOE is under no legal obligation to provide any

services at all to Z.G. If the school Z.G. attends does not have a psychologist, or a nurse

and the teacher does not employ any intervention strategies, there is no recourse for Z.G.

since DOE is under no legal obligation to provide any intervention and learning strategies

at all. Put simply, Z.G. has no legal recourse since DOE was not legally obligated to do

anything.

Further, without an IEP in place, there are no regular updates to measure Z.G.’s

progress, there are no conferences to take measure of how the intervention strategies are

working and whether the strategies have to be adjusted. Taking DOE’s argument to its

logical conclusion why have an IEP at all since in many cases DOE can provide services at

a school that are typically contained in an IEP.

The answer is simple. Without an IEP, there is nothing. 

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b. Without an IEP, it is speculation as to whether DOE would provide

any services to Z.G.

Of course without knowing what school Z.G. was going to attend, it is speculation 

as to whether any intervention strategies could be employed at all. The SRO gave

credibility to the DOE representatives that any teacher at any public school would provide

the same structure to Z.G. that Dalton provides. However, not all schools have

psychologists and nurses, depending on the size of the school. (Transcript p. 252) 

Moreover, DOE could not provide a special education teacher to offer teaching strategies

regarding Z.G. Further, the assertion that a public school teacher who probably has

between one hundred to two hundred students, would spend an hour every day with one

student, frequently employing one to one teaching strategies, being in constant

communication with the school psychologist, Z.G.’s psychologist, the parents and the

nurse stretches credibility to the breaking point. Finally, without testimony from

representatives of the school (teacher, nurse and school psychologist) that Z.G. would be

attending, it is speculation piled on speculation as to whether these services could be

provided.

c. The IHO’s Credibility Determinations Should Have Bound the

SRO and Should Be Binding on this Court if Supported in the

Administrative Record.

It is axiomatic that a trial judge or in this case, an Independent Hearing Officer is in

a unique position to assess the credibility of witnesses. Assessment and resolution of

conflicting evidence and witness credibility are within the province of an administrative

factfinder. McKinney v. Bennett, 2006 N.Y. Slip Op. 05274 9 N.Y. App.Div. 3 Dept.,

2006. The decision of a hearing officer to credit the testimony of witnesses is largely

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unreviewable by the courts, which are disadvantaged in such matters because their review

is confined to a lifeless record. Crimmins v. Dennison, 815 N.Y.S.2d 400 (2006) 

The IHO Findings of Fact and Decision found (page 7) that Z.G.’s teacher for the

past two years provided credible testimony that her disorder negatively impacted upon her

educational performance should have been binding on the SRO and should be binding on

this Court because it is well supported in the administrative record. IHO Stern quoted Ms.

Terpening to wit: 

“She definitely exhibits bipolar behavior in that there are days where she

will be extremely depressed and very upset. It can come on very quickly

where she will seem-appear fine and then begin crying because something

upset her. It takes a lot to calm her down and sometimes I’m unable to

calm her down. She needs to actually go down and speak with our school

psychologist or go down and visit the school nurse. Other times she will be

very high. She speaks very quickly. She has a hard time controlling her

outbursts. She’ll call out during class. Sometimes she’ll go off on tangents

and so she needs a lot of structure in terms of helping her to manage those

different emotions when they come up, especially in the context of a

structured classroom (transcript p. 158-59)” 

IHO Stern reasonably found that Ms. Terpening (who was Z.G.’s teacher for two

consecutive years) was the best person situated to observe Z.G. in her academic

environment and determine the impact of any emotional disorder on a student’s

performance. This factual and credibility determination is well supported in the

administrative record since Ms. Terpening being Z.G.’s teacher for two years was in fact in

the best position to observe Z.G. in an academic setting.

Ms. Terpening believes that Z.G. has flourished at Dalton and produced brilliant 

work but would not have been able to do so without the extensive support system in place. 

(Transcript p. 167). Ms. Terpening also testified that Z.G. should not be placed in a New

York City Public School without any support. She stated that it is “difficult to imagine”,

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she would “suffer on every level”, and her social and emotional well being would be at a

very dangerous level. (Transcript p. 174)

According to Ms. Terpening, Z.G. needs small classrooms, someone to check on her

daily maintenance, organization, and assignments, a rigorous curriculum or she will zone

out and not engage. She needs nurse accessibility, school psychologist accessibility, and a

teacher support system. (Transcript p. 174-76) According to Ms. Terpening, she needs to

intervene two or three times a day to keep her on track. (Transcript p. 188)

IHO Stern’s finding that Ms. Terpening’s testimony was credible, competent and

well founded is supported by the fact that she was in fact the best person situated to

observe Z.G. SRO not accepting Ms. Terpening’s testimony is a clear error.

d. DOE’s Position that Because Z.G. is Intelligent and Tests Well Bars

Her From a Designation of Educationally Handicapped Is

Disingenuous

Z.G. is suffering from severe bipolar disorder with ultra ultra rapid cycling,

ADHD and visual processing deficiencies. The only reason that Z.G. has been able to

thrive at Dalton is that she was provided a small structured setting, individualized

instruction and comprehensive support system with onsite counseling and monitoring. Her

intelligence should not overshadow the fact that she needs these services in order to be

successful and without these services in place there is a substantial risk of regression. 

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e. The SRO Decision Acknowledges that Services are Needed and

Thus the Decision Is Fundamentally Inconsistent. 

The SRO decision is fundamentally inconsistent. It is uncontroverted that Z.G. is

suffering from bipolar disorder. On one breath, the SRO concluded that Z.G.’s bipolar

does not impact on her education. On another breath, the SRO concluded that Dalton is

not appropriate because any public school could provide all the essential structure and

support including but not limited to refocusing, counseling, coordinated educational

interventions and monitoring medication side effects. Thus, the SRO directly contradicts

the holding of his own decision by acknowledging that the support services are necessary

in order for Z.G. to access her education. (See page 7 of the SRO decision)

f. Overwhelming Record Evidence Compels a Finding that the IEP is

Substantively Defective because Z.G. Should Have Been Classified

as Other Health Impaired, Rather than Non-Handicapped

Z.G. meets the criteria for “other health-impairment” which 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 is due to chronic or acute health

problems, including but not limited to a heart condition, tuberculosis,

rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy,

lead poisoning, leukemia, diabetes, attention deficit disorder or attention

deficit hyperactivity disorder or tourette syndrome, which adversely affects

a student’s educational performance. 8 NYCRR §200.1 (zz) (10)

This list of qualifying conditions is not exhaustive. See Application of a Child

Suspected of Having a Disability Appeal No. 02-048; rather it requires that the DOE

investigate whether a medical condition “adversely affects a student’s performance.” In

addition, Z.G.’s secondary diagnosis is ADHD which is specifically included in the list of

handicapping condition that qualify as other health impaired. 

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Bipolar is a neurobiologically based disorder in which the neurobiological system is

deregulated. This means sleep, attention, mood, emotions, self esteem are all irregular and

the system does not have the natural means to re-regulate itself. (Transcript p. 17) A

child and adolescent suffering from bipolar illness manifest the illness by having period of

mania and depression. (Transcript p. 17) Symptoms, which Z.G. suffers from, are anger,

which can be difficult to control, poor sleep and extreme anxiousness. (Transcript p.

17,23) Also, Z.G. received a co-morbid diagnosis of Attention Deficit Hyperactivity

Disorder (ADHD). (Exhibit “B”) Z.G. also has symptoms of ADHD, non attentive type

that manifest itself through a lack of focus, and a difficulty sitting still. (Transcript p. 17)

It is inconceivable that Z.G. with a very severe case of bipolar disorder including

ultra, ultra rapid cycling would not impact the processing of information which in turn

would impact her education. (Transcript p. 18-20) Bipolar disorder impacts Z.G.’s ability

to process new visual and verbal information. (Transcript p. 25) For example, racing

thoughts compete with Z.G.’s ability to focus and depression may make it difficult for her

to get motivated. (Transcript p. 26) Z.G.’s mood shifts many times within a short period

of time. Z.G. would exhibit symptoms of severe depression one minute and become manic

within minutes of the depression. (Transcript p. 18) 

Z.G.’s treating psychologist and her teacher confirmed the impact of Z.G.’s illness on

her education. Dr. Austin testified in relevant part:

“Well, the symptoms of bipolar disorder affect attention, affect activity

level, affect the ability of one’s sense of oneself, one’s self esteem. 

Motivation to initiate, lower if one is depressed and slowed down, one

doesn’t initiate. There’s a lot of anxiety that comes with not being able to

do what is asked.

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And then when on the other end of the schema-in when one is too activated,

the mind works too hard and there is difficulty consistently with bipolar

kids in the ability to follow-with executive skills, to organize and follow

through on tasks. There’s difficulty with working memory. There’s

difficulty with processing speed and with Z.G. in particular the visual

scanning and processing is quite problematic. But the auditory processing is

also difficult. 

These things wax and wane depending on the symptoms, and with Z.G.

these things wax and wane depending on the symptoms and her range of

symptoms is particularly wide and severe for all-compare to all the bipolar

kids. She has a very wide range and severity of symptoms. (Transcript p.

62-63). 

Ms, Terpening (teacher) also confirms that Z.G.’s illness substantially impacted her

education.

She definitely exhibits bipolar behavior in that there are days where she will

be extremely depressed and very upset. It can come on very quickly where

she will seem-appear fine and then begin crying because something’s upset

her. It take a lot to calm her sown and sometimes I’m unable to calm her

down. She needs to actually go down and speak with our school

psychologist or go down and visit the school nurse.

Other times she will be very high. She speaks very quickly. She has a hard

time controlling her outbursts. She’ll call out during class. Sometimes

she’ll go off on tangents and so she needs a lot of structure in terms of

helping her to manage those different emotions when they come up,

especially in the contest of a structured classroom. (transcript p. 158-159)

Ms. Terpening’s testimony was equally compelling regarding the necessity for

extensive support services for Z.G. See Section C supra in this memorandum.

Dr. Austin echoing the opinion of Dr. Faedda stated that Z.G. needed a small

classroom. She needs increased one on one support (Transcript p. 29, 48) She requires

extra time for taking tests in a quiet room. (Transcript p. 49) She needs a place for breaks

to allow her opportunity to refocus. (Transcript p. 49)

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In sum, the IEP casts Z.G. into the general education program without any support

services does not provide Z.G. with FAPE.

g. The Placement at Dalton was Appropriate

IHO Stern succinctly summarized the reasons why the placement at Dalton was 

appropriate. Z.G. is making significant academic progress. Credible testimony established

that Z.G. needs a structured school with an individualized program, and a comprehensive

system of interventions within the school-in addition to medication and outside therapy to

ensure academic progress. Ms. Terpening testified that all the interventions were essential

for Z.G. to achieve any academic success. (transcript p. 171) Her opinion was consistent

with Dr. Austin and Dr. Faedda. (Exhibit C and transcript 27) With only 100 students per

grade, Dalton is able to respond to Z.G.’s unique educational needs. For instance, Dalton

recognized that because of Z.G.’s disorder, transitions were particularly stressful for her. 

In order to provide essential stability and structure, Dalton placed Z.G. with Ms. Terpening

in 5th grade because as Z.G.’s 4th grade teacher, she had become well acquainted with

Z.G.’s educational and psychological needs. (transcript 164) Ms. Terpening also provides

one-to-one interventions as needed and on a regular basis, (transcript p. 160, 165),

spending an average of one hour each day meeting with Z.G. and consulting with either

Z.G.’s parents, her psychologist or other school professionals. (transcript 161). A learning

specialist, with special education training observes the class three days per week. 

(transcript p 181, 194) Based on Z.G.’s educational needs, the special education

consultant develops specific strategies to assist Z.G. and consults with Ms. Terpening so

that she can help implement these strategies. Ms. Terpening also consults and coordinates

with Z.G.’s other teachers, psychiatrist, psychologist, and her mother. (Transcript p. 159,

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166, 170-171, 182-183), 188). The school also provides a full-time psychologist onsite

that Z.G. periodically meets with to help her manage the symptoms of her illness. The

presence of a full-time nurse is crucial to help monitor the potential side effects of her

medication. The nurse’s office also has been utilized to help Z.G. decompress when her

anxiety becomes overwhelming and an onsite psychologist also is available for Z.G. 

Dalton itself provides a level of structure which inherently necessary for Z.G. to

learn. (Transcript p. 112-113) Due to Z.G.’s bipolar disorder and ADHD, an overstimulated environment would be detrimental to her. Dalton’s significantly smaller class

size enables Z.G. to receive the individualized attention she requires. (Transcript p. 29) A

larger classroom would foreclose any real opportunity to learn. 

Finally, and unique to Z.G educational needs, is that she requires an academically

rigorous program. Dr. Austin and Ms. Terpening both opined that Z.G.’s hyper

focusing/hypomania require that Z.G.’s mind be fully engaged throughout the school day. 

Most of her classes at Dalton are taught higher than grade level, thus, Z.G. is able to

engage her mind in such a way as to prevent decompensation. (transcript 162) 

As IHO succinctly put, it is clear that Dalton has developed a thoughtful and

flexible approach in providing an appropriate learning environment for Z.G. (IHO Exhibit

1, page 8 of IHO finding of Facts and Decision) 

h. Equitable Considerations Support the Parents

Equitable considerations support the parents. Z.G.’s parents fully cooperated with

the CSE/IEP process. They referred their daughter for evaluation, provided a social

history, independent evaluations, and attended the CSE meeting. Furthermore, the parents

enrolled and paid for their daughter to attend Dalton for two years without seeking

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reimbursement. This indicates that the parents enrolled their daughter in good faith and out

of a legitimate concern for her well-being. (SRO Exhibit 1, See page 9 of the IHO

decision)

CONCLUSION

For the foregoing reasons, Plaintiff C.B. on Behalf of Z.G., respectfully requests

that this Court grant plaintiff’s summary judgment in all respects, that the determination of

the SRO be vacated, and that the Court find that the DOE had failed to offer a free and

appropriate education to Z.G. Plaintiff C.B. on behalf of Z.G. also respectfully requests

that the Court find that Dalton was an appropriate placement, that equitable factors support

an award of tuition reimbursement and that C.B. on behalf of Z.G. be awarded tuition

reimbursement for her attendance for the 2005-2006 school year together with costs, a

reasonable attorney fee, and disbursements and for such other relief as the Court deems

just and appropriate. 

Dated: New York, New York

 September 25, 2007

Respectfully submitted,

s/Neal H. Rosenberg, Esq. 

NEAL H. ROSENBERG (NHR)

Attorney for Plaintiff

9 Murray Street, Suite 4W

New York, N.Y. 10007

(212) 732-9450

Case 1:07-cv-03419-AKH Document 9 Filed 10/05/2007 Page 28 of 29
CERTIFICATE OF SERVICE

I hereby certify that the foregoing Plaintiff’s Memorandum of Law in Support of

Her Motion for Summary Judgment was served via EC Filing system to Michael A.

Cardozo, Corporation Counsel of the City of New York, Attorney for the Plaintiff, 100

Church Street, Room 2-121, New York, New York 10007, by Andrew J. Rauchberg (AR

2179), Assistant Corporation Counsel.

s/Stewart L. Karlin 

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