Impartial Hearing Decision

Cover Sheet for electronic submission of impartial hearing decision

To: VESIDIH@MAIL.NYSED.GOV

From: Michael Lazan

IHRS Case number

Attached is a redacted, electronic copy of the (choose one): X Final,

Pendency or

Amended final decision for the above case.

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

X In The Matter Of The Parents and Guardians of A.,

Petitioner,

- against - M. Lazan I.H.O.

NORTH COLONIE CENTRAL SCHOOL

DISTRICT,

Respondent. X

This case came before me pursuant to the Individuals with Disabilities Act, 20 U.S.C. Sect.

1415(f)(1), on the parents’ Complaint dated September 7, 2010 and upon my appointment through the rotational list for Impartial Hearing Officers in New York State. The Complaint alleges a failure to implement the IEP for the year 2008-2009 and 2009-2010; that the District recommended an unduly restrictive setting for 2010-2011; that the 2010-2011 IEP improperly does not allow for

Carnegie credits; that the 2010-2011 IEP should have called for short-term objectives, failed to address the special needs of the student, failed to accurately state present levels of performance.

The parents requested a new IEP which has accurate levels of performance, appropriate goals and objectives, appropriate supplemental aids and services, appropriate classroom support, appropriate reading support by a reading specialist, and the opportunity to pursue a local diploma. The parents requested that A. be maintained primarily in a mainstream setting with supports and earning credits toward the diploma. The Complaint alleges violations of Section 504 of the Rehabilitation Act as well as violations of the federal IDEA laws and regulations and related state laws and regulations. The parents sought corrective services for FAPE denial due to a failure to implement during the 2008-2009 and 2009-2010 years. The matter was extended numerous times on joint application through June 13, 2011 because of witness availability, extensive testimony and issues, the brief writing process, the decision writing process, and related issues.

TESTIMONY AND EVIDENCE

B. Director of Pupil Services at the District, participated in team meetings, block meetings and CSE meetings regarding the child. (28) During fourth grade, A. received a mainstream, consultant teacher model program with five hours of direct service daily; there would also be indirect service, aide support, related services of therapy and therapy. (32)

Tutoring was included. (32) For sixth grade, again, A. was in a mainstream classroom with support and modifications. (35-40) There was a Special Math class for thirty minutes. (37)

The parents did not grant consent for an evaluation through March, 2008. (41-47)

For the seventh grade, direct instruction was added in reading; consultant teacher services, direct and indirect, were offered (with a special class in Math). (49-50) There was also an ASC II skills class in which students worked to remediate deficits. (49, 53) A direct consultant teacher was offered for one hour and thirty minutes daily. (50) The reading class was a guided reading program. (53-54)

The parents did not disagree with this program. (51) They agreed that A. needed special instruction in at least reading and math. (60)

The special education teacher was in the core classes (Science, Social Studies, English) for thirty minutes per period. (52) This teacher would be assigned directly to G. (52) The special education teacher would be working as an indirect consultant teacher for 30 minutes weekly to help modify work. (50) herapy was reduced. (54-55)

The aide that was assigned to A. would help her stay organized, make sure her materials are with her, provide redirection and focus, pack her book bag, help her access the program. (54)

Teachers would provide or prepare supplemental expository texts in Science and Social Studies. (57) No alternate assessments were required. (58-59) Homework was modified in length and content. (55) Assignments could be altered, shortened, completed with support, pencil and paper tasks could be reduced, level of difficulty could be reduced. (55) Tests would be modified to make them meaningful. (57-58)

In the English, Science and Social Studies classes, the special education teacher would allow for some meaningful benefit in the mainstream and allow for socialization with peers. (56)

A mid-year CSE meeting occurred on November 7, 2008. (68) The parents believed that the child needed the ASC II class every day instead of every other day; as a result, such services were added. (69)

For the 2009-2010 year, a very similar program was offered. (77) The program included

Special Instruction Reading 5x40, Special Class ASC II 5x40, consultant teacher direct 15x40, consultant teacher indirect 1x30, Special Class Math 5x40, group therapy,

2x40, aide, 10x40, therapy consult, once a month, aide, 10x40, extended school year

1:1, 3x60. (77)

The parents did not disagree with this program. (78, 83)

Special Reading was limited to 5:1 ratio, a change from the previous 12:1 ratio. (78) They added time for consultant teacher direct services so that the teacher would be in the classroom for the full forty minutes. (81)

When students are in junior high school, they must obtain “quality points” to be able to move on to the next level. (80) Once they get into ninth grade, they must earn “Carnegie Credit” to get to the next level. (80) This is based on curriculum that is developed for that particular class and cannot be modified. (81)

The parents requested a CSE review of A.’s reading instruction in November, 2009. (93)

The parents wanted a one-to-one program of reading instruction. (93) They felt that A. was not making reading progress. (93) The CSE felt that A. was progressing in her reading and performed well with a small group, modeling on the behavior of others. (94) The CSE agreed to do psychological educational testing through a C. to determine reading needs. (94) The parents declined this offer. (95)

The parents wanted A. to be in the core mainstream classes without modifications so that the child would be able to receive Carnegie Credit. (101) The teachers felt that she needed the modifications; they felt that A. needed to work on functional life skills, continue to work on math, time and money, continue to work on reading at her level, with some opportunities for mainstreaming. (102)

At the CSE review of 2010-2011, teachers discussed progress and needs and the parents went through all their proposed changes and recommendations. (102-103) The parents presented a draft IEP, which they read off during the meeting. (104) The proposed IEP contained a functional skills curriculum with opportunities for mainstreaming. (105) Mr. Shumway reported that the concepts in the main curriculum were beyond A.’s ability to comprehend. (105-106) He modified work to a significant degree. (106)

The program includes ASC Math, which works on skills like time, money, addition, subtraction. (107) ASC support was to help her in classes where she is mainstreamed, including re-teaching subjects in a significantly modified way so she could grasp the concepts in those two classes. (107, 111) ASC I Social Studies was a modified social studies curriculum taught by a special education teacher. (107) This is A.’s worst area, she doesn’t like Social Studies. (112) There would be general English, with aide support. (107) There would be general Science, with aide support. (107) There was Special Instruction Reading. (112) There was speech and language therapy, 2x46. (107) There was an OT consult once quarterly, and continued team meetings. (107)

Mainstreaming was recommended in English because it is important for her to have the ability to have exposure to higher level concepts, her general education peers. (108) The parents indicated that they do not want A. in any self-contained classes. (109) They do not want any program or testing modifications, aide support, life skill instruction if it requires her to be pulled out of the mainstream. (109)

B. felt that updated testing was necessary at this time to change the program. (110)

The aide would help A. stay focused on the material, take notes, help with some of the modifications, communicate with the teacher. (113)

The team believed that A. would not be able to manage the content areas to receive a

Carnegie Credit and requires modifications. (113)

Alternate assessments were not recommended for the IEP. (119) The IEP indicated she would receive a diploma, which generally means a Regents or local diploma. (120) This was a function of the parent’s desire and goal to have A. get a Regents or local diploma. (142)

The District did not check to see if the parents’ reading chart was accurate. (122)

In 8th grade, A. was progressing toward many of her goals and objectives based on progress reports. (123)

For 7th grade, about half of the goals were achieved. (124) Progress was seen throughout the year in regard to goals not achieved. (124)

The recommendations for 9th grade did not include any consultant teacher services. (128)

The “pace and flow” of the classes could not be modified to that extreme with a consultant teacher there. (129)

Aides are not New York State certified. (130) This is a non-academic individual. (130) The special education teacher would modify the work for A. (130) Then they would work with her in the special class. (131)

There is nothing in the IEP to indicate the amount of time the special education teacher and the general education teachers should meet to collaborate on curriculum and test modifications.

(132)

The District conducts WIAT testing for all special education students. (136) The parents did consent for the Goldman-Fristoe 2 testing. (136-137)

The CSE did not ever make a determination about a reading or math methodology for A.

(139-140)

They explained to the parents at the June, 2010 CSE meeting that the plan was to remediate

A. so that she can later participate in credit-bearing courses. (144-145)

Carnegie Credit refers to New York State standards for each curriculum area. (148)

The meeting minutes for the review for November 16, 2009 refer to an additional period of self-contained reading per day. (149) He doesn’t believe this was formally agreed upon. (149) The IEP refers to the need to continue the need to strengthen A.’s reading skills in small group instruction of three or fewer students; he does not know why this service was not provided. (150)

There are no reports regarding A.’s behavioral problems in mainstream classes. (151) She would frequently be overwhelmed by the demands of the class. (152)

D. was an assistant teacher at the junior high school who was assigned to the duties of consultant teacher. (1298) E., the case manager, was considered the primary special education teacher for her. (1299) E. provided the guidance for D. (1299) They changed this construct after the parents expressed concern and made a decision to hire a full time consultant teacher. (1300) F.

was a trained special education teacher who worked extensively with E. (1301) Then F. indicated that she didn’t feel that A. should be placed in regular education classes; it didn’t seem appropriate for her to modify to that level. (1302) As a result, D. finished out the year. (1303)

He never told the parents that the District does not allow alternative texts. (1303)

The CSE meeting for the 2010-2011 year was structured; they went through each provider and then the parents were given an opportunity to present their changes and thoughts. (1306)

The parents were not given an opportunity to meet with the IEP team for a pre-meeting without an administrator present. (1307) The teachers had asked him to be present. (1307)

Training specific to A.’s learning style was performed by E. and D. (1308)

The classes at the high school include a special class, a general education class which include students with disabilities, an “IRP” class where they spread instruction out over a couple of years, a “straight” Regents class, and there is an advanced placement Regents class. (1310) There is more of a technical focus in the “IRP” class. (1311) This is true for Math and English. (1311) In the “basic” class, there are 40 to 50 percent special education children. (1312)

G., Assistant Director of Pupil Services, indicated that 2009 testing revealed very low language scores, which made her concerned about A.’s performance in mainstream classes. (167-

168) The low receptive language score made her wonder how A. could be included in classwork.

(168) She spoke to the Social Studies teacher, H. in this regard. (169) Note taking was important for A., she needed to get a copy of the notes. (169)

The parents asked for individualized reading through an E-Mail on September 17, 2009.

(175) I. felt that A. was making progress. (182) A recommendation was made for an additional class of reading for A. and some additional testing. (182) The parents did not accept these additional services. (182-183)

The program continued, with guided reading, Rigby testing. (184)

On October 1, 2009, A. was reported by the teacher as not following reading strategies that she had been working on. (179) A. was manifesting “shutting down” behaviors. (179)

She had met with J., who had indicated that A. was not utilizing strategies that make it more effective for her to comprehend. (180) She spoke to the teacher, I., about the use of these strategies, including rereading, looking at pictures. (181)

She met with the parents in connection to the draft IEP for 2010-2011. (194)

A self-contained life skills Social Studies curriculum was recommended due to reports of shut down and behaviors. (196) This would focus more on current events and not on such areas as

World History. (196)

They recommended continuing the self-contained Math class to work on building skills, continue special instruction in Reading. (195) They recommended continuing mainstream English because of opportunities for socialization and because literature is something that she enjoys. (196)

She was mainstreamed for Science in Our Lives. (196) Both would have a modified curriculum for her. (197)

The parents were requesting full mainstreaming with direct consultant teacher for each class, with a resource room period 1:1 with a special education teacher, and direct consultant teacher reading 1:1 for a full period, and also a direct consultant teacher in an elective class. (197-198)

There was a change from the consultant teacher model employed in junior high school because consultant teachers have 20 students on the roster. (198) English and Science in Our Lives are smaller classes with aide support through the guidance of the special education teacher. (199-200)

At the CSE review, H. indicated that in Science, Social Studies and English, the concepts were often beyond A.’s ability to comprehend. (200) She didn’t understand the inferences in the novels, didn’t understand the vastness of the curriculum in history. (200) They would pare the lesson down do some key concepts. (201) They talked about how she needed work with her writing, how she became repetitive, wrote in simple sentences, needed work on structure, length. (201)

An ASC Math class involves the teacher providing hands-on instruction to remediate deficits.

(202) ASC support is where A. would work on organizing, making sure her planner is filled in, support English and Science, maybe maintaining a parallel book on A.’s specialized curriculum.

(202-203) ASC Reading is guided reading. (204)

A. reads at third to beginning fourth grade level. (204) Her reading depends on how motivating the text is, if she is engaged and focused and using the strategies that she needs. (204)

She would receive aide support in electives and special education classes. (205) The aide makes sure she has materials on her desk, she is paying attention, prompting, encouraging. (205-206)

She needs modifications because of her needs in reading comprehension, her need to master more basic math concepts, her need to be able to produce written work that is cohesive in thought and readable, her need generally for life skills. (212-213)

She is not aware of any steps the District has taken to determine why A.’s reading test scores have gone down so much since 7th grade. (223-224)

Guided reading is a program where children learn strategies such as reviewing pictures first, doing a read out loud, and then doing the independent reading. (226)

A. would not be taking the Regents or the RCT per the IEP for 2010-2011. (230)

I., a special education and resource room teacher, indicated that A. was a student of hers in seventh and eighth grade. (277) For 2008-2009, she had A. for Special Class Math. (278)

For Special Class Math, this started with only A. in the class. (280) About mid-year, another student came into the class. (280) A. needed a lot of redirection, a lot of encouragement.

(281) She used “touch” Math, which assisted A. (282) This involves Math that is very visual.

(311)

A. enjoyed “white boards” with markers. (282) She was usually engaged during the class.

(283) She made progress in her confidence. (284) Independence didn’t increase as much as she would have liked. (284) WIAT testing revealed a standard score of 61. (285) Scores were lower in math reasoning. (286) Goals resulted in progress in counting, telling time. (287-290)

For 2009-2010, she had A. for Special Class Math and Special Instruction Reading. (292)

The Math class was a continuation of the class offered previously. (292) Four to seven students were in this class, which involved a lot of work with money and addition and subtraction. (293) They tried to increase the difficulty and also work on multiplication and division and fractions. (293) This was work on the third grade level. (293)

For Reading, they worked on decoding, comprehension, writing tasks; there were four children in the class to start, then three. (294) This was a balanced literacy, guided reading approach.

(294) This is using the Fountas and Pinnell methodology, using text that was at her level. (295) They would work with graphic organizers, use strategies of stopping and thinking, worked on vocabulary.

(327)

They focused on her being able to read out loud. (296)

She was decoding at 96-98 percent in most of her reading, but comprehension varied. (296)

These were third grade texts. (296)

She did not agree with the parents’ request to provide A. with one-to-one reading instruction, she did not feel it would be motivating. (297)

A. started the year on a second grade level, and then was at the third grade level by the end of the year. (300) She was starting to notice when she made errors and would sometimes inquire when she didn’t know words. (301) She was comprehending better. (309)

They also did journal writing; A.’s writing was very repetitive with grammatical errors. (301-

302) She had a difficult time writing a paragraph. (302) AlphaSmart sometimes did increase output.

(303)

A. would not get anything from a 9th grade text. (305) She will quickly shut down if she is not motivated or interested or didn’t have enough background knowledge to support. (333) If she doesn’t have the confidence about the text, she wouldn’t participate. (334) She would not be able to listen to such a text. (339) She might be able to understand some concepts in a text like “To Kill a

Mockingbird” with a great deal of support. (346)

I. worked on the 2010-2011 IEP goals, using the WIAT scores and classwork to create functional goals. (304) She provided the Special Class Reading instruction at the same time that she was responsible for the ASC I class. (314-315) Sometimes these were provided in the same room.

(316) The two groups would not be intermixed. (316)

The IEP that was implemented during 7th grade had several goals that were not appropriate for A. (318) She realized this early on and did not implement them. (318) The goals were not amended. (319) She questioned the fraction goal, the algebraic expression goal, some of the higher level math goals. (319) She questioned goals13-18. (320) Certain goals could not be implemented until other goals were mastered. (323)

Eighth grade Math goals were mostly appropriate, with one goal (goal #17) being questionable. (321-322) This goal was not amended. (322)

She does not know the percentage of mastery for any of these goals. (324) These were calculated but she does not know where this information would be. (325) A. needed an 80 percent on five consecutive occasions to get a “PS.” (325) To achieve the goal, she would have to be very consistent without guidance or prompting. (326)

She has had to contact the parents because A. did not want to follow directions, but these issues were resolved satisfactorily. (329)

K., a Social Studies teacher, taught A. in 8th grade, 2009-2010. (350) The class was heterogeneously grouped. (350) A. was initially up front in the class, but it was hard for H. to assist

A. and for her to teach. (352) A. also could not get assistance from peers. (352) She was moved back two seats, which worked out better. (353)

K. would give H. the material well ahead of time so he could implement the work. (354) He would simplify the material, give her some basic concepts to come away with. (357) A. would be exposed to about a quarter of the unit. (358) Most of what she was taught was factual recall, as opposed to interpreting documents and then applying them to concepts. (358-359)

If there was a Smart Board presentation, she would print it in a way that A. could go through it. (360) H. would have the notes, and he would sit with her and show her where they were with the notes. (360)

From time to time they did see success on questions presented to her. (361-362) For a good amount of time, H. Would redirect her and reinstruct her and prompt her. (362) She would overhear

H. indicated where we were in the notes, in the reading. (362) A good majority of the time she struggled with trying to stay focused and awake. (362) She wouldn’t fall outwardly asleep except during a movie. (362)

She would range from the 70s to the 80s in testing. (364) There were a few occasions where she didn’t achieve that, so they tried to do “correction” to raise the grade. (364) Homework would be modified, she was always on time for it. (364)

Writing was included in the class. (366) This was simplified, but she had trouble with hit.

(366)

She did very poorly on the state assessment. (366-367)

She really enjoyed when the class did plays. (367) From time to time she would give A. a pre-set question in class. (368)

A lot of class participation work was based on a student being able to analyze issues after some instruction; A. could not do this. (368)

H. would make a study guide that would go along with the quiz or test that was already developed. (369)

She was given extra time, positive reinforcement. (370-371)

She believes A. needs a self-contained class. (373) The curriculum could help her see her role as a citizen, help her be aware of the current events around her. (373) She thinks this would pique her interest. (374)

A lot of the sleeping in the class was a coping mechanism, in addition to being medically induced fatigue. (374) She was on medication. (381)

A. enjoyed the social life of the school, walking between classes, attending “quiz bowl” and such events. (376)

She doesn’t remember use of a scribe. (377) It might be offered by H. (377)

For group work, she would give H. a “key” to a component that A. would be contributing to.

(381)

It is an important life lesson to teach children how to interact with a child like A. (383)

She received extended time to do the state assessments. (385)

There are no inclusion classes. (390) There were no self-contained Social Studies classes in

Junior High. (391)

L., a special education teacher working in the ASC class, indicated that his students tended to need a little more help than a child gets through resource room. (393) They need more reteaching, presetting, preparing for testing, quizzes. (393) He would oversee testings, work on homework assignments, longer projects. (393-394) A. was in this class; she was also in a reading instructional period with him once a day. (394)

She would need more individualized attention than the other students; her homework assignment would be more modified than the other students. (395) Within the room, he has aides, teacher assistants, and herself. (395) Generally she would work on presetting herself for class and on current assignments or tests. (395)

This was the ASC II class. (396)

They worked on guided reading, where they would develop background knowledge, make predictions, talk about what to expect. (398) They worked on sight words, general decoding. (398) She needed a one-to-one person reading with her because she would have to continually prompted to be an active reader. (398)

In 7th grade, there was whole group and then one-to-one reading instruction combined. (421)

There would also be pairs work. (421) She would not read independently. (422)

She seemed enjoy this class, she certainly was receptive to the class. (399) She readily participated. (399) She benefits from having subject matter knowledge in the area that they are reading about. (400)

She struggles with comprehension, she is a good decoder. (400)

At the end of the school year, she would be able to answer comprehension questions. (405)

She struggled to answer the questions. (405) You need to reword the question, provide prompts, lead her in a different direction. (405) She started the year a struggling reading, and she ended the year the same way. (405)

In writing, she needed one-on-one, with considerable support to express her ideas. (406-408)

She met her writing goals with support. (408-409)

She needed the five days a week of support. (410)

WIAT scores were 47 for reading and 77 for decoding before the 2008-2009 year. (411) He administered the WIAT in a subsequent year. (412) These are fairly consistent with the prior year.

(412) They also did Rigby testing. (431)

There were two teaching assistants with him in the classroom. (430) He would talk to the consultant teachers every day. (430)

H., an ASC I teacher, was A.’s consultant teacher for 2009-2010. (440) He saw her in the morning during one of her “support times” and then during another “support time.” (440) He went into Social Studies, English and Science. (441) He provided both direct and indirect consultant teacher services. (441)

He would meet with teachers in advance, determine what types of assignments they would have, then modify the assignments and tests. (441-444)

He also provided instruction in the ASC II, which would be one of her support periods. (444)

He also would push into the Health and Home and Career class since there was trouble scheduling with the aide. (444)

In Science, the children would be expected to follow along with the class discussions, have reading assignments from the text, take notes. (444-445) He would try to keep A. as engaged as possible to have her try and “fill in” the notes. (445) Sometimes they tried to do the “lab” during

ASC support time. (446) She had difficulty with questions even with modifications. (447) They came up with a supplemental material, one or two broad concepts. (447) There were modified tests. (448) She had difficult with writing. (463)

They would drill her on the concepts for the unit, and she was good at rote memorization and could pass some of these simple tests. (448) Writing was difficult if not impossible. (463)

Social Studies was A.’s biggest challenge. (448) He tried to keep her engaged by having her “fill in” the notes and encourage participation; she did better with group activities. (449) He would threaten to call her mother. (449) She would have to read condensed short paragraphs that had been in a study guide, but that was difficult for G. (45) He would enlarge the paragraphs, they would highlight words, work on questions. (45) She didn’t get anything out of oral lectures. (451) She didn’t quite grasp time, the connections how something that had happened previously can have an effect later. (451)

If A. wrote, it was difficult to read and understand. (454, 462)

She refused to use the computer or word processor. (455) She did not like the AlphaSmart.

(456)

The English class typically involved students who were reading a novel, spelling, vocabulary, grammar work, journal work, essays. (456) She was unable to participate in the discussions of the books because the books were beyond her level. (457) They tried to show her movies about the material, but she would fall asleep. (458) She could decode, but not understand.

(459) It was difficult to understand what was written, which was often redundant. (462) She would have trouble reading her own writing. (475)

She was much more engaged in this class, but this was because a lot of challenging students kept the teacher on his toes. (460)

She was pretty quiet throughout with the other students, rarely raised her hand, and if she would offer something it was not related to the discussion. (460) She would volunteer for a play in Social Studies. (460) The other kids were very nice to her and liked her quite a bit. (461) In the hallway, she was very social. (461)

Some essays in English were very good for her, but they were very simple and very short and written on the computer. (462-463)

In Science, there is writing to be done. (463) It was mostly lab work, which was very difficult for A. (463)

Grades were based on some of the limited, highly modified assignments that would be provided. (463) She would forget the assignment memorized for the tests. (464)

In the ASC class, the teacher would start with her planner, which he would try to maintain and organize. (468) She has trouble with organization and writing. (469) They would go through the study guides and simplify them. (469) She was very difficult, she required a lot of prompts get to get her book bag open and to get her to stay focused. (470) The ASC class had a separate reading group in the back. (472)

He would threaten to call her mother or grandparents, and did occasionally call the mother.

(471)

He conducted a WIAT reading test, the 61 composite score was quite low. (476)

He felt that she needed a program that will teach economic self-sufficiency and “things that have real meaning.” (478)

He felt that the whole year was a “big waste” of her time. (478) She was very unhappy in her classes and felt overwhelmed. (479)

He and I. were responsible for the reading goal progress reports. (484)

Goals were to shore up her basic skills. (485)

M., a school psychologist, sat in on parent-teacher meetings to address concerns in eighth grade. (525) She observed her in the classroom, reviewed her educational file. (528)

A. has had avoidance behaviors in the classroom since she was 6, according to a report by a

N. (528-530) She scored with a 60 IQ, verbal IQ of 68. (535, 539) Her reports draws similar conclusions to that of the current teachers. (536-537) Other reports also draw similar conclusions, including that rote work is easier for A. than more analytical work. (552)

Her reading scores went down from 25th percentile in 2003 to the 1st percentile; this is because rote skills are needed for first grade, and rote skills are a strength for A. (578) The ELA was in level two for seventh grade. (580)

Observations were during the eighth grade year. (584) In one Math class, she was on task only 27 percent of the time. (587) A teacher would sit by her and and constantly engage her. (588)

There was resistance even when the teacher was working individually with A. (588) She was accordingly not convinced that a one-to-one reading teacher would be helpful when there was a CSE review in November, 2009. (591)

The parents had indicated that they had done enough testing of A. and did not want further testing. (591)

The parents agreed to evaluate the child in November, 2010. (598) She then conducted an evaluation, also reviewing reports and speaking to teachers. (599-603)

Her current consultant teacher, O., indicated that she needs learning modifications to the 2nd grade level on concepts. (611)

She tends to be given questions that are not open-ended. (612-614)

She would shut down during testing if the work got too difficult. (616) She did complete the tasks; the tests represent active engagement in the testing. (618)

WISC-IV testing scores were almost as low as they could be. (621-622) This amounts to a full scale IQ of 40, in the moderate to severe range of . (622) She will struggle to comprehend academic instruction beyond basic early literacy and math. (622) She will require ongoing support to apply those functionally. (622) WIAT-III testing was consistent with these findings. (625) There are strengths in certain rote skills. (625) Oral reading rate was relatively high but the accuracy was low. (625-626) Word Count score was average, but the themed development and text organization of what she wrote was delayed. (628)

GORT-4 testing revealed significant delays, with scores at the very lowest end of the scale.

(630) She tended to decode, and was engaged throughout. (631) She did not demonstrate second grade skills. (632)

Her Math skills were more typical of a kindergartener. (632) Writing skills were at a first grade level. (632)

She cannot really generalize her skills. (633)

BASC-2 scores derived from the consultant teacher and special class teacher revealed physical complaints, attentional issues, learning issues, social skills issues, adaptive behavioral issues. (636)

Vineland-II testing revealed low daily living skills, with slightly higher communication skills and socialization range. (638) She performs slightly better in a special class setting with more supports. (639) She is not getting any benefit from grade level programming. (640) She requires special classes in Math, Social Studies. (643-644) For Reading, she only needs to apply skills already learned in other settings. (644) She does not need direct instructional Reading any more.

(645) She can read at the level that she is going to read at. (645)

If she were in noncontent areas, gym or specials, she might require some consultation to support her language and communications in that setting. (646)

The IEP should not have any mainstream classes in it. (646-648) If she were in such classes, they shouldn’t teach her to a third grade level. (648) She feels there is a serious social-emotional impact in leaving her in mainstream classes, she cries, shuts down, falls asleep, acts silly and inappropriate. (649-650)

Records and conversations with the parents indicate that thyroid problems make it difficult for her to stay alert and create avoidance behaviors. (652-653)

A Functional Behavioral Assessment was supposed to be conducted as part of the November, 2009 IEP meeting. (653) She didn’t feel that she could complete this without updated testing. (653)

None has been completed. (653)

She enjoys her peers, she benefits from peer modeling in terms of her communication skills, social skills. (653)

She needs to continue to remediate her reading throughout her content area with the support of a special education teacher. (660)

She doesn’t remember any discussion about a transition plan. (661)

There were discussions that A. was more fatigued in the afternoons. (665) There was no data collection on this point. (665)

Prior findings on the WIAT indicating a reading comprehension standard score of 77 are consistent with her findings because such a score reflects questions that can be answered from materials in front of the test taker. (670) The higher prior finding on math (score of 65) is statistically insignificant. (670)

She did not take any steps to identify whether the WISC was a recommended test for children with (671-672)

The current IEP anticipates a class in Consumer Science. (688)

The aide assigned to the mainstream classes in the current IEP would have a maximum load of eight students per class. (689)

She has reached a plateau at the first grade level. (692)

Her adaptive living skills were slightly better at the special class level based on the teacher ratings. (693)

A Functional Behavioral Assessment is typically for students whose behavior is extremely disruptive to their learning or the learning of others. (699) A.’s behavior interferes with her learning. (699) She does not believe A. needs one; the antecedents to her behavior are frustration and boredom. (700)

When she tested her, A. needed the breaks after lunch toward the end of the day. (707) This is similar to the amount of breaks that a typical student would need. (708) There were more informal breaks than typical students. (708) She started to resist testing, so they stopped for the first day.

(709)

A. would engage other students in off-task behavior. (709)

J., a special education teacher, was A.’s teacher from grades 1 to 6 at P. school inside the District. (745) She taught A. in resource room, as a consultant teacher, and tutored her over the summer. (745, 747) She taught her reading in the previous summer, 2010. (746) This was reading work with maybe a little bit of math. (746) There was a self-contained Math class that she taught her, one-on-one. (778)

Resource room was thirty minutes a day of reading, individually. (783) There was guided reading, word work, comprehension work. (783)

As a consultant teacher, she would be in the classroom for language arts, science, social studies. (748) Sometimes it would be with a T.A.; it might be in the back table of the classroom with a similar concept modified down. (748) There were lots of visuals. (748) She would speak with the general education teacher daily to modify lesson plans, they would meet with the related services providers for an hour a week. (749) They found reading material at her level by going to libraries and relying on her personal collection of work. (750) The T.A. would work on math with her for 45 minutes. (782)

They would work with her in the back of the room at a lower level in Social Studies. (797-

798) It was easier to include her in Science, it was more hands on. (799-800) For language arts, students were at different levels, there was less of a group lesson. (801-802) The program worked very well in this scenario. (802) Her writing ended up like everybody else’s. (803)

Without support she would not understand much. (799) She would end up writing random thoughts or strings of letters. (804)

She responded well to this alternative programming. (751) She was able to read the materials, she was able to be included in the classroom when she could. (751) They looked for her to be “80 percent” but it was very basic. (751)

They pulled out a few concepts or five vocabulary words; the most overall important idea was identified and then try tried to teach it to her. (751)

A. needs things broken down, language simplified, needs small steps, works well with visuals. (753) She needs to be motivated or have a choice. (753) Otherwise, she will turn herself off. (753) Attention can be a problem in the classroom. (754) She can do amazing things when motivated. (809) She was like two different kids. (809-811)

A firm approach has worked with her. (754) Her T.A. used to let hear say that she wouldn’t do things, and she would have to intervene. (754) She needs to know that she is not the boss. (754)

She would underperform when there were things she could do; there is a behavior piece to her.

(755) She did respect her teachers and there was never really a problem. (755)

She would take the idea, connect it to her real life. (756) She would start small and give her purpose step by step. (756) She has difficulty comprehending big ideas independently. (756)

She is very social, she loves being with her friends, being a helper in the classroom. (757)

At times they pulled her out for reading and math because she is the type who is too social and worried about what the other kids were doing and not the lesson. (758)

She should read texts that she chooses. (758) She likes fiction with humor, does not like non-fiction. (758-759) She likes lessons that involve cooking or food, including with regard to math.

(759)

They tried to keep A. reminded of earlier lessons throughout the years to reinforce the material. (760)

She is a good decoder but struggles with reading comprehension. (761) She cannot read independently. (762) She will read words and not think about her reading. (762-763) You have to stop her after a few sentences and ask her to think about what she is reading. (763-764)

She made quite a bit of progress in reading from first grade to sixth grade. (764)

In the last few years, she has learned many more negative behaviors about reading. (764) She will say she doesn’t know or care. (764) There is less of an effort to comprehend text. (765)

For the first time after not seeing her, was reading very fast, just flying through the text and not making any self-correction. (772) She had regressed. (773)

Inferential questioning is very difficult for her. (765)

She worked on sight words with her, with a comprehension piece as well. (767)

She got to about Level R in sixth grade as measured by the Rigby. (768) She was usually able to answer the questions that go back in the text. (768)

For math, by 6th grade, they were working on adding and subtracting triple digit numbers with regrouping. (769) They did multiplication and division concepts. (769) This was not first grade level, more like second grade level. (775)

Writing pieces were maybe three paragraphs. (770) She used the AlphaSmart and typed.

(770) There would be support from brainstorming, graphic organizers. (770)

She does not believe A. plateaued at the first grade level. (774) She was certainly reading texts at the 2nd, 3rd, 4th grade level with support. (774) She still has gains to be made in her reading.

(775)

When you hand her something to do on paper, maybe she does come out on the first grade level. (776)

She always performed worse on the WIAT than on any other testing. (776) The WIAT is not very motivating. (776)

She often needs prompts to answer questions on texts. (794)

If she could be included in a group, she could benefit and get positive feedback from other kids. (813)

It was harder to integrate her into 6th grade Social Studies, with the lecture style, the note-taking. (814)

The reading issues that existed in 6th grade continue to exist. (816-826)

She would use strategies in her presence during 6th grade. (827) Now, it hard to get her to use the strategies. (827)

During tutoring in 2009, they worked on second grade material. (830) She was encouraged to have discussion, use “sticky notes,” stop and write a note down. (830)

There is a slight increase in the instructional level from summer, 2009 to summer, 2010.

(833)

Her writing is not looking good at all, she doesn’t use proper spacing, capitalization, punctuation. (836) She has good spelling when she slows down. (836)

She has difficulty retelling a story. (840)

She learns best one-on-one in regard to reading because of her unique needs. (843) In groups, she would have difficulty. (843)

The mother, a certified teacher and reading specialist, indicated that A. received consultant teacher services in Reading and Math beginning in first grade. (854-857) There was supplemental reading, individualized. (858) During these years, she emerged to a student capable of reading at an elementary level. (858) There was also one-on-one Math instruction. (859) She also received summer tutoring until about the third or fourth or fifth grade, which was individual. (859)

When they went to the junior high, she was told that they didn’t have such programs. (860)

As a result, she felt fortunate to get a 12:1:1 reading class with a special education teacher. (860) She advocated for the consultant teacher model that had been used in elementary school; she was initially told that they did not have such a program, but then the District employees agreed to such a program. (862-863) A. was assigned a consultant teacher in English, Science, Social Studies for 30 minutes of the 40 minute period. (863) There was Special Class Math and Reading. (863-864)

For 7th grade, the teacher who was assigned to A. was having trouble with modifying the curriculum. (864) This was D., who was not certified according to her online search. (864) They then replaced her with F. through to two weeks before the end of the 7th grade year. (865)

A. had adjustments to make in junior high, adjusting to a huge building, getting on on the bus with peers. (865) She enjoyed D.; when D. left it was very upsetting to A. (865-866) D. was kept on to assist another boy who was in all the same classes. (866) F. was not adequately trained and didn’t know A.’s routine when they started. (871) She also accused A. of not doing her homework and pulled her out of class, which embarrassed her. (871-872) Eventually she sought to have D. work with A. but not be her consultant teacher. (1077)

The last thing A. wants is to be embarrassed in front of her peers. (872)

She was under the impression the ASC II classes were taught by teaching assistants. (868)

There were a number of other teachers who were not certified. (869)

She did not receive 1:1 guided reading in 7th grade, which she had excelled at. (875) She did not read independently. (875) For a lot of time, the classes were reading a magazine called Time for

Kids. (875, 877) E. was the teacher, and he used expository texts at 3rd to 6th grade levels. (877-

878) There was virtually no level text, and very little one-to-one instruction. (878) A. said she didn’t like the class, that the books were “crappy.” (878) She noticed that A. was becoming less engaged with reading. (878) She regressed from level R to level L in seventh grade. (879)

Much of her homework was challenging to her in seventh grade. (880)

She was not able to use different books, that was one of the rules of the junior high. (882-883) Previously, they didn’t teach her with books that were at her frustration level. (882)

She was mainstreamed for English, Science, Social Studies, Lunch, Art, Health, Music, PE.

(884) This all continued into eighth grade, though instead of a 12:1 reading group the District agreed to reduce the number of students to a 3-1 ratio. (884)

Other students are very protective of A. (886)

There were incidents when she ran away from F., when she wasn’t happy reading by herself, when she was hiding things from F., when she wanted D. over F. (888) These were reported by parents or other children in the class. (889) She did not want F. to be teaching A. (1077)

She plays on the girls’ soccer team at the high school. (890)

For 7th grade, I. worked on the Math goals that were “less abstract” or easier (892-893, 931)

Goals not addressed were goals 14 and up. (931) I. indicated that the school was waiting to implement those goals. (931)

I. taught 8th grade Math again, they rolled over the same goals. (893) E. said he didn’t want to change the goals because I. was not at the IEP meeting. (894) She agreed and indicated that she wanted the goals to stay because they were not met. (894)

A. was not being taught her Math goals and was not being taught to the state standards. (895)

She should have been taught to the standards since she was not alternatively assessed. (895) She has never been alternatively assessed. (897)

She met with E. before the CSE meeting and worked on the IEP; they agreed on everything except a few of the goals. (898) It was a collaborative effort. (899)

“On paper,” H. and Q. were A.’s primary special education teachers for 8th grade. (899)

However, H. was the main teacher, with I. the teacher for math and reading. (900)

She created a graph indicating that A.’s reading scores on the Rigby regressed in junior high when she lost her one-on-one reading instruction. (901-902) She lost her skills. (902)

Over the summer, J. was able to bring her reading comprehension and oral reading accuracy to Level O at 95 percent accuracy. (902-903)

In the beginning of the year there was communication between teachers and parents, but then it stopped; I. did not even call her back. (904) H. did share that he has difficulty modifying the curriculum for A. (905)

Social Studies was taught through a supplementary text that came with a basal reader. (907)

In Science, she got an “SRA” kit. (908)

Then all of a sudden it was A.’s responsibility for only a few broad concepts in connection to grading. (908) They objected this language in the report card. (909-910) She feels the child should get number or letter grades instead of a pass fail. (914)

Thereafter, there were no teacher-parent conferences without administration present. (910)

She does not agree that her child has plateaued as a learner. (911) She does not agree that norm referenced testing tells anything about a child as a learner. (911-912) She was told the child had plateaued in kindergarten, in third grade, in sixth grade. (913)

A. received a 3 on her Science assessment, which indicates that she was proficient. (916)

She excluded A. From the Iowa Cognitive Test because she knew her child was below average cognitively and didn’t want testing to be used to put her in a more restrictive setting. (923)

She objected to testing by the school psychologist because she received testing from the special education teacher and speech pathologist every spring and had enough data. (923-924)

When A. left P. School, she was at Level S; after seventh grade, she was at Level L; she stayed at this level until J. brought her up to a Level O this past summer. (928)

There were no “G” classes in the District for seventh grade; she was in heterogeneously grouped general education classes. (931) They created a “G” level option in eighth grade. (932) “G” classes are those which have the general education curriculum and a slower pace. (933)

A report from an R. of the was shared with the District (Exh. 32)(936)

She objected to the schedule for the 8th grade because she is most tired at the end of the day and she had her three core classes at the end of the day. (939) She was told that A. would nod off in Social Studies and Science in 8th grade, and she indicated that this was not acceptable. (939) The District did not try to do anything to change things after learning A. was falling asleep. (941) She asked H. to stand in the back of the class. (941)

Q. was not her ASC II teacher in eighth grade. (944)

Regarding 8th grade goals, she did not receive any reports about A.’s progress through percentages of mastery. (945-946)

In 7th grade, A. gained a lot of weight and was very unhappy with the consultant teacher.

(946) She had difficulty adjusting to the junior high school. (946) There was even less reason for her to be tested, and she felt the reviewing records would suffice. (947) She was being treating by different doctors. (949)

For 2010-2011, A. was originally slotted to go to all general education classes, including in Math. (953) This was set up by the general education teachers. (953) This was per her request; she wanted A. to take classes that would teach her state standards in all four content areas so that she could earn a local diploma through the RCT. (955)

Her suggestions for the 2010-2011 school year were sent to the District as an E-Mail. (956)

This was read by her at the CSE review, but never discussed at the meeting. (956) H. read the IEP, and then she read her version. (957) No changes were made. (957)

She had previously been told that for A. to have curriculum modifications would prevent her from gaining corresponding credits. (957-960)

During contact with the teachers during 2009-2010, she was told that A. was a well-behaved child. (1044-1045) She was never told that A. did not belong. (1046) The 8th grade teacher said that A. did not belong. (1050)

H. at one point said to her that the decision to keep A. in mainstream classes is “out of his control,” that “they’re taking over” and that he just “wanted a job next year.” (1048) H. told her that he understands what she “wants to do.” (1048)

In seventh grade, F. indicated that A. was not learning in the general education classroom; she never said that she shouldn’t be in there. (1051)

For 2008-2009, A. didn’t have a certified direct consultant teacher working with her. (1066)

D. was only certified from birth to grade 2. (1066) I.’s certification was only up to grade 6. (1066)

Some of A.’s goals were not taught to her. (1066) She was not taught 7th grade math in a modified manner as was supposed to happen. (1066) She was not provided wth text at her instructional level as per the IEP. (1066) The new direct consultant teacher was not trained per the IEP. (1067) Reading needs were not being met in the 12:1:1 class because of class size, the teacher’s lack of a reading specialist degree, or other factors. (1068)

The IEP did not indicate that A. would receive 8th grade Math standards. (1070) This is implied because A. is a general education student. (1071)

For 2009-2010, A..’s special instruction reading teacher was I.; at the same time that A. was getting special education reading, I. had an English class to teach. (1080) A. was not provided with a calculator until the fourth quarter. (1081) She was accordingly not taught all her Math goals. (1082- 1083) She was not taught to New York State standards in Math. (1084) Modifications were not provided consistently, including appropriately modified homework assignments. (1085-1086)

A. is reading at level O, which is end of grade 4 level. (1087)

Testing was not always provided by the classroom teacher to the special education teacher in advance so it could be modified. (1089)

Without alternate assessment, the child must be taught per New York State standards. (1091)

Even with an alternate assessment, New York State standards should be used. (1091)

She is concerned about A. not being graded, about A. having no assessments. (1094-1095)

A. has not been getting grades in specialized reading class or ASC classes. (1099)

The proposed IEP would give her less time in general education and therefore, less social benefits. (1103)

She wanted accurate present levels of performance per the evaluation conducted independently. (1108) An educational evaluation of A. would be appropriate. (1109)

She requires, as appropriate supplemental aids and supports, a highly qualified and well trained direct consultant teacher. (1109)

As a result of A. not being taught to state standards in math for two years, her math assessments plummeted. (1111) She wants A. to be given appropriate instruction as corrective action. (1111)

A. is a much more engaged, intelligent and capable child that testing indicates. (1122)

She has requested one-to-one reading from the District. (1137)

She was satisfied with J. in effect teaching A. in the back of the classroom and teaching a parallel curriculum, with integration as much as possible. (1139-1140)

A. was reading at a Level S during her 6th grade year. (1144-1145) Reading comprehension was that of a fourth grader. (1145) Today, she is at the beginning fourth grade level. (1146) She has not made progress in reading the past two years. (1147) Individualized reading instruction is what produced gains for her in sixth grade. (1148) In June at the end of eighth grade, she was at Level L.

(1151) This was per testing of J. and R. (1154)

Every triennial year, she wrote the District asking them not to perform additional testing.

(1156-1157)

Regarding the 2008-2009 IEP, she wanted individualized reading, not a 12:1 with a special education teacher who was not reading certified. (1158) She didn’t want the ASC II, she wanted resource room. (1159)

She was not taught to New York State standards in math for 2008-2009, that is the only subject she was not taught standards. (1161) She could have accomplished many of the state learning standards. (1164)

She should not have had any “NS” or “no progress” grade on her goals progress report for

2008-2009. (1166-1167)

At the November, 2008 meeting, E. wanted to see her get daily support, which she received.

(1168) She was taken out of tech because the teacher could not make the modifications. (1168-1169)

A. is able to understand and speak at a teenager level. (1149) She was able to understand instructions and make the soccer team and play in games. (1149)

She agreed with the programming at the planning meeting for the 2009-2010 IEP. (1174)

Manipulatives, assistive technology were provided during 2009-2010. (1175) The special education teacher met with the parents once a month. (1175) The notation about her Rigby level being at a level R is incorrect; she was actually reading at a level L at the time. (1176)

She did not want C. to do the evaluation of A. because she is not a reading specialist. (1180)

A. would like to be in regular education classes, she does not like to be different. (1187)

She wants A. in a reading class with a one-to-one reading specialist. (1189-1190) She needed a direct consultant teacher in her elective classes. (1190)

She did not want pull-out therapy for 2010-2011. (1233) She was interested in general education support with (1233)

She wanted to take care of the technological aspect, to make sure that A. had support for the computer she was using. (1234)

At the 2010-2011 IEP review, she asked that a local diploma be put on the IEP and was told that a diploma “in general” would be stated there. (1236) She was provided an opportunity to share her thoughts at the meeting, but was not provided the opportunity to engage in discussion and have a collaborative conversation with the service providers before the review or during it. (1236-1237)

For Math, she seeks a “basic” class, with rich, expert instruction by a certified mathematics teacher with special education support to help A. access the basic curriculum and work toward attaining as many standards as possible. (1238) She seeks a “basic 9R” 9th grade Regents English class with a consultant teacher. (1240)

She seeks a resource room class, one-to-one. (1241) The District offered self-contained support in lieu of the resource room class. (1242) She seeks direct consultant teacher services for reading delivered by a certified reading specialist. (1242) She seeks direct consultant teacher services in the elective classes. (1243) She is interested in Consumer Science, not chorus. (1244)

A. is not currently in such a Consumer Science class. (1244)

Reading regression is tied to the disuse of strategies and it’s usually tied to the lack of expert instruction. (1245)

Reading slipped in 7th grade, and then stayed the same through 8th grade by way of the 3-1 or

4-1 instruction she received then. (1248) Summer of eighth grade, with one-to-one instruction, resulted in reading going back up to Level O. (1248) If she received 40 minutes of instruction from a reading specialist daily; she would probably eventually catch up to grade level. (1249-1250) She currently reads at the 3rd grade level. (1252)

She told the District that she wanted E. to take over for F. at the end of 7th grade. (1255)

The State Education Department Regional Associate indicated that, even with modifications, there could be some possibility of partial credit, different types of credit, or the District could seek a waiver. (1265)

F. and A. did not have an appropriate working relationship. (1266) She embarrassed A. in class regarding a homework assignment. (1267) F. told her that she didn’t know how to modify the curriculum and that A. didn’t learn anything from her as a consultant teacher. (1268)

The age range of the students in the current reading class is 15-19 years of age. (1270-1271)

The ASC support class for 9th grade has a different ratio, it is a more restrictive 12:1:4 than the15:1 for eighth grade. (1272)

During pendency, A. is receiving a reading class with 12 students in it. (1273)

There was no discussion with her about how an aide would be able to perform the functions that the consultant teacher had previously. (1276-1277)

Her exposure to general education allowed her to score a 3 on the 8th grade science tast, score a 2 on the 7th grade English test. (1278) State Math scores have gone down, she attributes this from failure to being exposed to a grade level curriculum. (1279)

A. currently receives Math with two other boys, they are within the appropriate age range.

(1281)

S., a Science teacher at the District, graded A.’s eighth grade science test. (1286) She made an error in grading and reported that A. had scored much higher than she actually scored. (1286- 1290) A.’s exam responded had little to do with the questions. (1292) The corrected score would reduce the grade from a 3 to a 1. (1293)

T., a licensed clinical neuropsychologist, reviewed A.’s records, interviewed the parent, reviewed prior testing by the District. (1356-1358) He performed testing on A., some of which was duplicative of the testing by the District. (1358) He also observed her in classes. (1161) He spoke to some individual teachers. (1361)

He observed a math class which had a substitute; he went to a class with a number of special education children. (1363) He also observed her in her general education English class, which took place in the writing lab. (1364) He also observed her in Social Studies. (1364) The consultant teacher was there for both the Social Studies and the English class. (1364) He liked the Math class model, which provided an opportunity to be active, to practice some of the routines that were instructed, in allowing independence and dependence. (1389) She seemed to be able to follow the lesson. (1390) The structure was to create more engagement, for her to be more active; this is closer to the structure that he is proposing. (1418)

In English, the consultant teacher and A. were engaged in rewriting in a “regular sort of way.” (1365) There was virtually no interaction with typical peers. (1385-1386) She refused to write a single paragraph. (1387) The teacher was reported to be pleased with the final product.

(1387) This was seven or eight sentences generated without the teacher’s assistance. (1387) Writing ability is consistent with cognitive findings. (1388)

In Social Studies, there was less involvement. (1365) The consultant teacher sat adjoining

A. at the front of the class, observing a power point presentation. (1366) She and A. would go

“back and forth” on the related handouts. (1366) There was a “consumable” amount of time where

A. was working independently – either listening to the power point or responding to the handout which he believes was modified for her. (1366) The teacher indicated that she was able to take notes effectively, use the worksheet. (1392) She has difficulty with the concepts, but this doesn’t mean she isn’t able to learn other facts, perform other functions. (1393) She does appear to have that capability. (1393)

She would need this sort of consultant teacher expertise to be able to participate in a mainstream setting. (1367) For English, she needs somebody who is actively engaged with her in the class to create a curriculum that would; focus her; identify the types of ideas, facts, concepts that she might be able to integrate and develop; develop mechanisms to help G. be able to process the information or gather the information. (1367) The classroom would have to be constructed in terms of presentation of the information, the nature of the task, how that task could be adapted to fit with

A.’s learning style. (1369) Structural changes in the classroom are needed; someone with a special education background would have to consult with the teacher to generate ideas in terms of how curriculum could suit the needs of all the children in the class including A. (1370) There are many mechanisms for teaching children who have learning problems that are useful to the general population. (1433)

Needs need to be simplified. (1415) There needs to be focus on a single concept, having her engage fully in it. (1416) The concept might have personal meaning to her. (1416) This should be presented in a way that is more active and engaging than the traditional passive style. (1416)

An aide would not know how to function in this capacity; considerable work would be needed to adopt the curriculum to suit the needs of the student. (1370-1371) She would be able to progress in her study skills goals if she were in a mainstream setting with a special education teacher. (1371)

The question presented to him was how he could maximize participation in the general education curriculum. (1375) He did also address other information per his duties as a psychologist.

(1376)

His cognitive scores and achievement scores were consistent with the scores obtained by the District. (1379) Scores were very low in all domains. (1396-1407, 1410)

He noted in his report that A.’s mood was tearful and complaining. (1380) This was atypical as it related to her being observed. (1380-1381) U. did say that she tends to be somewhat moodier than the other children in the class, and that she has made progress. (1381)

She was reticent in both special classes and general education classes. (1382)

She feels pressure, she works very hard, and school appears to be a strain for her at times.

(1408) He supports releasing some of the pressure or at least exploring what the strain is about.

(1408) He could not tell whether the pressure comes from the mainstream classes or the self-contained classes. (1408)

Much of the research has been advocating not placing any limits on what kids can do. (1419)

Realistic expectations are important. (1419) He would assume a Regents diploma would not be within A.’s ability. (1419)

He thought the IEP goals were generally appropriate though some would be difficult. (1420)

The IEP was consistent with his experience with A. except that he disagreed with the aide in terms of the person assisting her. (1420) Aides tend to warm a seat and don’t contribute much to the development or implementation of a plan. (1420)

The parents’ desires should factor in the decision to keep a child in a general education class or not. (1435)

V., principal of W. School, indicated that the school offers Regents diplomas, local diplomas using the RCT, and IEP diplomas. (1442-1443) The state has indicated that students receive credit, or Carnegie Credits, for 180 minutes of study per week. (1443) The credits are also based on “learning outcomes” that are based on the syllabus or per the state directed outcomes. (1443-1444)

Modification works to withdraw some outcomes and make some less rigorous. (1445) They would be taking the same assessments with the same rigor, with a different environment. (1447)

He is not aware of any situation where the state applied for modifications of the credit standards for a student. (1450)

Evidence reveals state testing scores of: ELA; 572 (Level 1)(Grade 5); 480 (Level 1)(Grade

6); 602 (Level 2)(Grade 7); for Math; 587 (Level 1)(Grade 5); 500 (Level 1)(Grade 6); 601 for Math

(Level 1)(Grade 7). (Exh. 2)

Grades in 5th grade were largely A and B. She was integrated into the class, there was increased participation with the group.

Grades in 6th grade were largely A and B, with teachers concluding that A. had a great year which included work on a power point presentation. She worked well with peers, had a good attitude, was attentive to instruction, put in effort. She successfully completed tasks in research, note-taking, creative writing, prefixes, suffixes.

Grades in 7th Grade ranged from A to C in core classes, with one C and two Ds on final exams. For English and Social Studies, satisfactory progress in AIS is noted. Homecareer is noted as showing excellent effort. Grades in 8th Grade ranged from C+ to A in core classes, with largely F grades on midterm and final exams. English , Science and Social Studies indicate that G. is held to a few key concepts. ASC II math has alternative curriculum designated with satisfactory progress in

AIS.

A 6th grade reading progress report from Hanrahan indicates that A. was an “Early Reader

Stage II with support.” A. met expectations in the first marking period and progressed toward expectations in the other three. Effort and conduct were excellent throughout.

Testing by N. when A. was 6.5 years showed a full scale IQ of 60 on the WPPSI-R. (Exh. 8)

There were relative strengths in verbal subtests for information and vocabulary, and performance subtests of object assembly and picture design. Vineland testing revealed a 6.4 age equivalent for written language, with significant delays in expressive and receptive language.

Testing by J. on 3/16/05 reported by Fowler indicates that was outperforming her ability level in reading with scores of 1.8 reading composite. (Exh. 13)

The 6th grade IEP indicated that A. was to get, inter alia, 2 hours daily of direct consultant teacher 20-1 to support Reading, Science/Social studies, Writing, an aide 4 hours a day in an 8-1 ratio. (Exh. 17) There was Special Class Math as well. A. was reading at Level P (third grade)

according to the Rigby, 2.6 grade level according to the WIAT. It is indicated that she needs intensive special education and related service support to continue making progress. She needs to develop basic math skills and to work on independent reading. Strategies were discussed that A.

required to read; it was noted that A. tends to “fake read.” She needed constant reminders to employ the strategies taught. It was noted that A. needs to connect the reading to her life. She needs visual presentation.

Progress report for 6th grade indicates that A. achieved her goals in decoding, answering W questions, summarizing, using writing techniques to produce a 3 paragraph essay, counting to $1.00, regrouping, solving single digit multiplication and division, identifying operations in addition and subtraction. (Exh. 19) She did not achieve in reading independently, identifying unfamiliar words, identifying sentence completion, telling time.

For 2008-2009, the IEP dated May 27, 2008 provided for direct consultant teacher 90 mionmutes a day with a 20:1 ratio to support English, Science, Social Studies, consultant teacher indirect 30 minutes 20:1 ratio, special class math, special instruction reading with a 12-1 ratio,

Special Class ASC II every other day, an aide for 4 hours a day with a ratio of 8-1. (Exh. 22) A

SEIT was assigned over the summer three times a week for an hour. She was reading at the 2.3 grade level equivalent according to the WIAT-II and was Level R on the Rigby (middle fourth). An

IEP dated 11/17/08 makes the ASC II class a daily class. (Exh. 25)

Progress Report for 2008-2009 (Exh. 28) indicated that A. achieved goals in decoding, answering questions about text, brainstorming, composing complete sentences from phrases; progressed satisfactorily in using reading comprehension strategies, reading independently, identifying unfamiliar words, counting coins to $1.00, telling time, solving two and three digit addition, identifying operations in addition and subtraction; some progress in correcting punctuation and capitalization errors. There is no progress notation for the third and fourth marking periods for goals 13-18.

For 2009-2010, the IEP provided for special instruction reading 5x40, Special Class ASC

II, Consultant teacher direct 120 minutes a day, consultant teacher indirect 30 minutes a day, Special Class Math, an aide 10x40. (Exh. 30) Many modifications were built into the program, including encouragement to respond orally and to point to answers; study guides once a week; class notes provided; modified homework; calculator; use of word processor/AlphaSmart; extended time 2.0 for assignments; front of class seating; modified assignments; positive reinforcement; second set of texts for home use; the opportunity to read books in parallel areas in science and social studies; books provided to the special education eacher in advance; books available on tape or CD. Team meetings would occur bi-monthly. The special education teacher was to meet with the parent monthly.

There were multiple testing accommodations. The student was required to participate in the same state or local assessments as other children. It was indicated that A. needs to continue to strengthen her reading skills in small group; she will pretend to read or go through the motions. She needs daily practice in her math skills to retain them.

A reading progress report by a summer tutor, R., indicated that A. was taught through Levels

J K L. (Exh. 32) Strategies are recommended such as stopping to check for understanding, rereading.

She needs to be held accountable, needs a great deal of reassurance, struggles with transition.

A letter from J. dated 9/22/09 indicated that A. displayed a lack of motivation to read and several poor reading habits. (Exh. 34) She noted that A. had trouble reading material that she had read in the past. There were many avoidance behaviors during her work with A. over the summer.

The CSE dated November 16, 2009 recommended an extra period of self-contained reading per day. (Exh. 37, 38)

Progress Reports for 2009-2010 indicate that satisfactory progress was made on decoding, reading comprehension, using “text features,” identifying theme, plot, characters and setting in a story, learning and practicing a variety of writing strategies, independent reading, unfamiliar vocabulary words, reading comprehension, identifying fractions, adding and subtracting proper fractions, evaluating numerical expressions. Some progress was made on simple addition and subtraction in algebraic equations, identifying operations with addition and subtraction. She did not achieve goals relating to use of a graphic organizer, generating short answers, developing a thesis in writing on a topic. She achieved goals in regard to using a word processor to write an essay, two and three digit subtraction problems, two digit by one digit multiplication problems, problems with two digit dividends and one digit divisors. Goals relating to counting coins were not focused on in the classroom.

The IEP dated 6/22/10 recommended ASC Math, an ASC support period, ASC Social Studies, ASC Reading, aide support in English, Science and in a special class and the elective. (Exh.

45) WIAT-II testing conducted by the teacher found a 61 standard score reading composite, with a 40 in reading comprehension. Math scores showed a composite score of 40. Writing composite scores were at 49.

It was reported that she was reading at Level L; the readings in English class were too difficult for her, and she had difficulty participating in English class. Social Studies and Science proved extremely difficult to her even with modification as she struggled to stay awake. The recommendation was to focus on a program that would help A. in the “real world.”

The evaluation of M. dated 11/10 indicated that, in previous testing, A.

received a score that was the 63rd national percentile rank in Total Reading on the IOWA Test of Basic Skills. (Exh. 55) State testing for 4th through 7th grade found her at Level 1 in all measures except a 2 in fourth grade Science and a 2 in seventh grade ELA. WIAT-II testing from March,

2007 through 2009-2010 revealed little progress in academics. Reading comprehension was at 83 standard score in March, 2007. For 2009-2010, this standards score decreased to 40. There were decreases in Reading Composite, Math Reasoning, Math Composite, Numerical Operations.

She reported that the current consultant teacher indicated that A. needed questions posed with two choices; was not able to find information in the notes; does not like being singled out; refuses to look at her work when there is an attempt to simplify language; can be stubborn. She recommends a 2nd grade curriculum with all concepts to be very concrete.

The current English teacher indicated that A. requires prompting but is friendly, shares stories, reads aloud, participates in activities, hands in work. She would like to observe her ability to write on demand with a scribe.

The current Social Studies teacher she needs support staying alert, struggles with long essays and notes, presented as more comfortable with the classroom as the year progressed; she seems to be improving her vocabulary and quizzes; interactions with her consultant teacher seem positive.

The current Science teacher indicated that she had adapted to the routine and is retaining some of the basic information; she requires constant prompting and redirection and modifications.

She wants to fit in socially and academically, and fatigue is an issue for her.

The Reading teacher indicated that her skills were at a 4th grade level. She became more comfortable and productive, but requires continual practice with basic skills and can be resistant.

She works well with peers and performs best in a small group.

The ASC II teacher indicated that she is hesitant to intiate conversation with peers, has started to take the initiative in some academics, may shut down, needs continued reinforcement, needs information broken into parts, needs more complex information broken into smaller parts.

A. herself indicated that she likes English but not Science or Social Studies, she enjoys her consultant teacher and friends.

Test scores were very low on the WISC-IV; on the WIAT-III, standard scores ranged from

66 (spelling) to 40 (reading comprehension, math problem solving), with a 102 for word count in writing. Total Reading score was 58. GORT-4 scores were very low. Social and emotional testing per BASC-2 revealed that G. was at risk or “clinically significant” for somatization, withdrawal, attention issues, school problems, social skills, leadership, functional communication, adaptive skills. Vineland-II scores indicated moderately low to low scores; play and coping skills were deemed moderately low in the special class and low in the general education setting.

The recommendation was for a classification change to an emphasis on daily living skills and special classes, with general education classes that are not part of the core curriculum.

The grade 9 report card comments on “citizenship,” “effort,” and then gives a pass and fail grade. (Exh. OOO) All classes were passed. All grades were Level 1 or 2 out of 4.

The statewide math results for 8th grade were 480, Level 1. (Exh. PPP) ELA score was 601,

Level 1. (Exh. QQQ) Science grade was 66, Level 2. (Exh. RRR)

The evaluation of T. included an observation during a morning in which she seemed tearful.

(Exh. EEEE) She seemed to be impacted by the observation. She was reticent throughout the classes. There was limited participation in the Academic Skills Class. In English writing lab, there was largely work with the consultant teacher which required prompting. In Math, she participated fully in the lesson compared to the others. In Social Studies, she worked in an adaptive format, which she does not like.

WISC-IV testing revealed very low scores throughout. Attentional functioning was at or below the 5th percentile. She does not adjust well to changing demands or be able to know what to attend to. Faced with complexity, she will react in a “blind” fashion, almost randomly.

There is a limited capacity to process and retain auditory and sequential information and to discriminate between non-representational objects. She has difficulty recognizing the relationship between different elements. There are significant language delays throughout, in both expressive and receptive areas. Verbal/conceptual abilities are seriously deficient. The ability to understand abstraction is limited; cause and effect can be difficult for her.

Memory functioning is in the deficit range. Repetition can assist her learning. Recalling factual elements within the verbal modality is a strength. Achievement functioning is consistent with earlier findings on the GORT-4, though she reads basic narratives at a good pace with few errors. Comprehension of the material is variable.

She tries to be perfect; she worries about failing. She feels anxiety about how others view her. She can be sensitive and moody, and themes of being sick and tired run through her fantasies.

Once she has settled in, she is able to respond relatively effectively to an environment.

For her to gain from the general curriculum, it must be presented in a classroom that “utilizes every aspect of the environment,” taking into account “nature,” “extent of the stimulation provided,” “the type of activity elicited,” “how activities are structured,” and the nature of the individuals who are participating. Information should be presented in an experiential format with daily routines that allow her to incorporate ideas in a repetitive fashion. General curriculum should be thought of in terms of “what you want her to be able to do.” It has to be translated into something relevant for her daily life. The structure needs to respond to her need for support and also help her develop her capacity to function independently. Active participation is necessary, as was the structure in the math class.

Her isolation in the mainstream environment is concerning. Integration into the class is minimal. It is crucial to identify means by which she can become more engaged with peers.

Curriculum should be based on her current level of functioning; setting the bar too high risks failure and a sense of defeat. Shifting between stimuli should be avoided. There should be analysis of whether inattention is due to executive impairment or demands in the classroom.

It will be important to expand vocabulary knowledge and her capacity to apply contextual clues to her reading. External and visual prompting should be used. A sequence of steps is needed with simplified language.

FINDINGS AND DECISION

1. FAILURE TO CONSENT.

As a preliminary matter, the District argues that the parents’ FAPE claims must be subject to a bar because the parents failed to consent to certain evaluations.

In this particular connection, the District does not cite to any case on point within the Circuit. Instead, the District relies on two out of Circuit cases: M.L. v. El Paso Ind. Sch. Dist., 610 F.Supp.2d 582 (W.D. Tex. 2009) and also Andress v. Cleveland Ind. Sch. Dist., 64 F.3d 176 (5th Cir.

1995).

In M.L., the federal judge did rule that a parent’s failure to consent precludes a parent from challenging the IEP. However, the federal judge did not point to any caselaw in support of this proposition. The federal judge cites to a federal statute in support. However, a close review of this statute reveals that the statute stands for a different proposition. In fact, 20 U.S.C. Sect.

1414(a)(1)(D)(ii)(III)(aa) relates to a District’s rights if a parent refuses to consent to the receipt of services. This is not the case here, where the parents have not only consented to the receipt of services, but have initiated a due process proceeding to get additional services.

In Andress, the court was ruling on a reimbursement case. The District also cites to sundry

SRO cases, also involving reimbursement. However, these cases are materially different than the case at bar. Among other things, these claims involve application of the three part analysis of Burlington/Carter. 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 (1985)). Under the Burlington/Carter analysis, a District may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate, and equitable considerations support the parent’s claims. There is no similar formula employed to determine whether a District has provided a student with FAPE.

It should be noted that, when assessing the importance of consent in reimbursement cases, the SRO focuses the “third criterion,” which relates to equitable considerations. Application of a Child with a Disability, Appeal No. 01-057. Equitable considerations are not part of the inquiry in cases involving FAPE claims where there is no request for reimbursement. Here, the District conducted its own yearly WIAT testing on the student and did not show that a lack of information was fatal to the ability to create an IEP. In this jurisdiction, the law indicates that the District does have a “affirmative duty” to provide FAPE to all students, assuming that the student’s parents have consented to receipt of the actual services. Application of a Child with a Disability, Appeal No. 04-

050 and 04-052. I do not agree that the parents’ failure to agree to evaluations barred the parents from raising FAPE claims.

2. 2010-2011 IEP.

A. LRE

In Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993), the Third Circuit Court of Appeals explained the duties of school districts to provide an education to students with disabilities in the least restrictive environment. The Second Circuit explicitly adopted the Oberti approach in 2008 in P. v. Newington Bd. Of Educ., 546 F.2d 111 119-122(2d. Cir. 2008).

In Oberti, the Third Circuit set forth a test to determine whether students have been appropriately mainstreamed by a District: (1) whether the District has made reasonable efforts to accommodate the child in a regular education classroom; (2) whether there are the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) whether there are possible negative effects of the inclusion of the child on the education of the other students in the class. Id., at 1217-1218. The Second Circuit considers this the “first prong” of the Oberti test. Newington, 546 F.2d at 119-120. The Oberti court continued to explain that, if after considering these factors, the court determines that the District was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. This is considered the “second prong” of Oberti test. Newington, 546 F.2d at 119-120.

(I) First Factor, First Prong

With respect to first factor of the first prong of Oberti, the record shows that the District has made efforts to accommodate the child in the regular classroom. The District provided the child with a general education program in elementary school, with an individual consultant teacher assigned. The District then opted to provide the child with a program that included a self-contained class in Math, a self-contained class in Reading, and an “ASC II” skills class (eighth grade) for middle school. The parents did not object to this program, which involved placement in regular education with a one-to-one consultant teacher in English, Science and Social Studies. The program also included numerous additional interventions, including an aide, study guides, copies of notes, modified homework assignments, the AlphaSmart word processor, extended time for assignments, modified curriculum, seating modifications, a second set of textbooks, parallel books, modified tests, books on tape.

(II) Second Factor, First Prong/Second Prong

With regard to the second part of the first prong of Oberti, and also the second prong of

Oberti, the record supports the view that the child does benefit from at least some participation in a general education class with supplemental aids and services. Though the child has difficulty understanding the material in a lecture format, the record indicates that the student benefits socially from being in general education classes and can manage if work is provided to her individually with extensive modification. The student also benefits if the special education teacher recreates the class lesson with an appreciation for motivation or the class involves hands-on work. The question here is whether the District is correct that the student should be limited to two general education classes a day, English and Science. Given that the parties do not dispute that A. should be in a general education English and Science class, I need not assess whether A. should be in such classes.

With respect to the self-contained Math class, the parties previously agreed that it was appropriate for A. to be placed in a special class for Math. Though in testimony the parents now support the provision of Math in a general education environment, the record does not support such a proposal. In fact, the parents’ own evaluator, T., testified that the special education model in A.’s

Math class was a positive one. This model provided A. with an opportunity to be active, to practice some of the routines that were instructed, and to allow both independence and dependence that would be useful in her learning. It should be noted that the parents’ brief does not mention the request to place A. in a general education math class.

The Social Studies class is the main point of contention between the parties in regard to LRE claims. The District had previously provided the child with a consultant teacher in a general education Social Studies class. The parents seek to continue with the consultant teacher/general education arrangement, while the District’s IEP removes the general education class and replaces it with a special education class. The parents’ argument here is based on the fact that the student’s progress reports consistently show progress in meeting IEP goals. Indeed, cases reveal that progress in IEP goals is an important factor in determining least restrictive environment. See, e.g.,

L. v. North Haven Board of Educ., 624 F. Supp.2d 163 (D. Conn. 2009)(Court affirmed Hearing Officer’s conclusion finding program of 62% general education appropriate where student progressed on goals). Still, even where there is progress listed on goals in the mainstream class, the classroom can be deemed inappropriate if there is convincing testimony to the contrary. T.W. v.

Unified School District No. 259, 136 Fed. Appx. 122 (10th Cir. 2005)(finding that mainstream classes inappropriate despite progress on IEP goals; progress deemed entirely due to individualized attention). The reports and testimony from H., the student’s 8th grade consultant teacher, contradict the IEP goals. Though the progress reports on the goals indicate satisfactory progress in a variety of areas including reading comprehension and learning and practicing writing techniques,

H. indicated G. fell asleep on an almost daily basis in the class and that this class was her biggest challenge. Testimony from the 8th grade Social Studies teacher, K., is consistent with the testimony of H. K. indicated that A. would have a hard time staying awake in the class and that a good majority of the time she struggled with trying to stay focused and awake. Statements made by other teachers also supports the notion that the child was not doing well in the Social Studies classes.

Expert testimony is considered to be important in such inquiries. G.B. v. Tuxedo Union Free School District, 751 F. Supp.2d 552 (S.D.N.Y. 2010)(discussing importance of heeding expert testimony in LRE cases). The testimony and report of T. is more in line with the testimony of the teachers than the progress report. T., in fact, indicated in his report that a structure such as in her

Social Studies class is likely to “overwhelm her system” and that her current teacher O. has indicated that she is not able to retain any of the main ideas and concepts taught in the class. T. also pointed out that A. feels considerable pressure to perform. Indeed, the IEP indicated that A. is being counseled out of school for depression. While T. did indicate that A. could function in a general education program that was restructured to suit her needs, so-called “milieu therapy,” I am not aware of any authority that would allow a hearing officer to order a school district to restructure its classes in such a way in such a fact pattern. Further, the parents have not provided me with any such authority or even argued that such a restructuring should be ordered.

Finally, the record does indicate that A. would have a better chance of understanding the materials in the self-contained Social Studies class. The testimony from the District indicates that a self-contained Social Studies class would involve modified curriculum and discussion of current events. This should make it easier for A. to be motivated to listen and participate in class.

Underscoring all this, the record suggests that, overall, the child is struggling with the amount of general education material that she is exposed to. Dr. Thomas reveals that A. is feeling a lot of pressure and that school appears to be a strain for her at times.

The parents point in particular to a recent case involving the Kiryas Joel District, wherein that District was very recently found to have failed to provide mainstreaming opportunities to a disabled student in a thorough decision. J.G. v. Kiryas Joel Union Free School District, 2011 WL

1346845 (S.D.N.Y. 2011). However, in Kiryas Joel, the District failed to provide any any mainstreaming opportunities at all. Here, the District has offered the student with significant mainstreaming opportunities, as it has through the middle school and elementary school years.

The record also shows that the District has considered the possibility of mainstreaming to an appropriate extent. In sum, I agree with the District that A. would benefit more from a self-contained social studies class, and that the District has accordingly included A. in school programs with nondisabled children to the maximum extent appropriate.

(III) Third Factor, First Prong

With respect to the third part of the first prong of Oberti, the record is clear that A. does not engage in behaviors that are disruptive to the other students in the class.

B. FAPE

Under the IDEA statute, "states receiving federal funds are required to provide 'all children with disabilities' a 'free appropriate public education [(FAPE)].'" Gagliardo v. Arlington Cent. Sch.

Dist., 489 F.3d 105, 107 (2d Cir. 2007). To meet this requirement, the FAPE must provide "special education and related services" tailored to meet the unique needs of the particular child, 20 U.S.C.

Sect. 1401(a)(18), and be "reasonably calculated to enable the child to receive educational benefits."

Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

Aside from issues relating to the Least Restrictive Environment, the parents contend that the 2010-2011 program fails to address the student’s social, emotional, academic and management needs. Though I agree that the District’s program was presented in an appropriately restrictive framework, I do not agree that the program met the student’s academic, social, emotional and management needs.

(I) FBA

The parents contend that the student requires a Functional Behavioral Assessment. Where a student's behavior impedes his or her learning or that of others, the CSE must consider behavioral interventions, supports, and strategies to address that behavior. 20 U.S.C. Sect. 1414(d)(3)(B)(i). For such students, New York law requires an FBA, which is defined as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment." 8 N.Y.C.R.R. 200.1(r) Given G.’s issues with sleeping, not paying attention, putting her head on the desk, rubbing her eyes, looking for papers, poking peers, crying, asking to go to the bathroom, playing with her shoelaces, etc., it is apparent that such a behavioral plan is appropriate. The IEP does include some behavioral strategies, including being provided copies of notes and being encouraged to read aloud. W.S. v. Nyack Union Free School District, 2011 U.S.

Dist. LEXIS 36020 (S.D.N.Y. 2011)(where IEP considers behavioral strategies, FBA not required).

However, the record shows that such strategies have not managed A.’s behavioral issues. It is appropriate for A. to have an FBA, and a corresponding BIP, indicated in her IEP.

(II) Present Levels

The parents also contend that the District’s 2010-2011 IEP does not accurately report A.’s present levels of performance. The IDEA requires that an IEP include a statement of the child's present levels of academic achievement and functional performance, including a description of how the child's disability affects his or her involvement and progress in the general curriculum. 20 U.S.C. Sect. 1414(d)(1)(A)(I); 34 C.F.R. Sect. 300.320(a)(1); see also 8 NYCRR 200.4(d)(2)(i)). However, a review of the IEP indicates that the “Present Levels” sections do incorporate teacher reports and do provide meaningful detail about academic achievement, functional performance, and a description of how the child’s disability affect her in the classroom. The “Present Levels” discuss, inter alia, A.’s work in the mainstream English class, including in regard to classroom discussions. There is mention of A.’s performance in Social Studies and Science and the modifications made in those classes. There is a breakdown of A.’s

Math abilities and of A.’s performance in the Math class. There is a statement about A.’s writing in class and reading in class. I do not agree with the parents that the Present Levels of Performance in this IEP are defective.

(III) Short Term Objectives

The parents also contend that the IEP does not provide for short-term objectives while denying A. the right to participate in the regular assessments. It is true that, if a child requires alternate assessments, a child should have short term goals on her IEP.^[8] NYCRR Sect.

200.4(d)(2)(iv). Pursuant to New York State Education Department policy, alternate assessments are used for students with “severe disabilities.” “The New York State Alternate Assessment for Students with Severe Disabilities,” NYSED website, http://www.p12.nysed.gov/apda/nysaa/archive/brochure/broch.htm.

in society and for self-fulfillment. Students with severe disabilities may experience severe speech, language, and/or perceptual-cognitive impairments, and evidence challenging behaviors that interfere with learning and socialization opportunities.

These students may also have extremely fragile physiological conditions and may require personal care, physical/verbal supports and/or prompts and assistive technology devices.

The record indicates that A.’s disabilities are significant. The record indicates that she has limited cognitive ability and behavioral limitations. She also required highly specialized education.

However, there is nothing in the record to clearly indicate that A. requires “highly specialized psychological and medical services” in order to maximize her potential. The record also indicates that A. functions socially and is able to go back and forth to classes, has good communication skills.

The parents even reported that A. is currently playing on the school freshman soccer team.

Accordingly, I do not agree with the parents that A. should have been alternatively assessed and should have therefore received short-term goals on her IEP.

(IV) State Standards

The parents also contend that A. will not being taught to state standards per this IEP.

I agree with the parents that the New York State Learning Standards are applicable to all students, including A. “The Learning Standards and Alternate Performance Indicators for Students with Severe Disabilities;” University of the State of New York, The State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities, 1998, http://www.p12.nysed.gov/specialed/publications/learnstand/lrnstd1.htm. However, there is nothing in the IEP to suggest that this student is being exempted from state standards. I am also not aware of any requirement to mention the New York State Learning Standards in an IEP. This claim is without merit.

(V) Reading

Throughout the hearing, the mother testified that the District’s program does not offer the child enough support in terms of reading. The record shows that the child started to develop a distaste for reading over her middle school years. J., of the District, was persuasive in this regard.

She indicated that the child “seems to have many more negative behaviors about reading” than she had. She will say “I don’t know, I don’t care, I don’t like reading.” She added that she couldn’t let A. read more than a paragraph before stopping her and asking her what she read. She indicated that A. doesn’t “self-monitor” her reading, she just wants to move on and be done with it. Finally, she indicated that “you need to bring her back constantly.”

This was not A.’s attitude in the elementary school years. J., who taught her individually in elementary school, indicated that A. made meaningful gains and had a more positive attitude toward reading during elementary school.

J.’s testimony is consistent with the testimony of E., a special education teacher for the District who taught A. in an ASC II class in seventh grade. E. indicated that A. needed to be continually prompted to be an active reader. He also indicated that she would not read independently. E. stated:

A. needed or required a one-to-one person reading with her because she needed to read aloud and that person would have to continually prompt her in order to make sure she was being an active reader.

Transcript, at 398.

WIAT testing shows that the student has not progressed during her time in group reading.

Rigby testing shows the same thing. In fact, during testimony, M. indicated that the child has plateaued in reading. However, J. and T. testified that A. has not plateaued and has additional reading gains to make. T. indicated that much of the research has been advocating not placing any limits on what children can do.

It should be noted that the regulations specifically indicate that “specially designed reading instruction” can mean individualized instruction. 8 NYCRR Sect. 200.6(b)(6). Courts have also recently found that Districts can fail to provide a FAPE because a student required individualized reading instruction. E.S. v. Katonah-Lewisboro School District, 742 F. Supp.2d 417 (S.D.N.Y.

2010)(Chief Judge Loretta Preska). The SRO has also found that students require individualized instruction in appropriate situations. Application of the Department of Education, Appeal No. 08-

017. I agree with T. and J. that this student has not plateaued. This record indicates that this child would benefit from individualized reading so she could be kept focused. An individualized approach might also allow an instructor to connect a reading assignment to A.’s particular interests.

The record indicates that A. requires such an approach to do her best. I accordingly agree with the parents that the District’s reading program for 2010-2011 did not meet A.’s special education needs.

(VI) Aide in Science, English

During the hearing, T. referred to the fact that the District’s program offers Science and Social Studies without a consultant teacher for the 2010-2011 school year. This leaves A. with only an aide in her Science and English classes. Both these classes were difficult for A. to manage even with a trained special education teacher providing her with direct instruction. In fact, the record indicated that such consultant teachers were challenged by work associated with maintaining A. in a general education class. Far from being a certified teacher, the record reveals that an aide is not a teacher or educator and may not even have any educational training at all. B. characterized the aide as a non-academic individual. The District did not call any such aide as a witness.

The mother testified that there was not even any discussion of how the aide could function in the capacity of the consultant teacher at the review. T. indicated that he felt that an aide would not be able to function in this capacity, that an aide would basically be “warming a seat” in this sort of situation. There was no real rebuttal to that statement by T. by the District. I agree with T. that the child requires a direct consultant teacher 1:1 to be appropriately education in an academic general education class.^[1]

3. COURSE CREDITS/RCT.

The parents argue that the District has denied A. the ability to earn Carnegie Credits and/or earn a regular diploma or an RCT diploma. The parents also argue that A. be taught materials in all content areas so that she could pass the RCT and therefore earn a local high school diploma. The parents also request that the District request a waiver to allow A. to sit for the RCTs with modifications to her curriculum.

Issues relating to how course credits, diplomas, or graduation requirements are calculated are not for Impartial Hearing Officers to decide. Neither an Impartial Hearing Officer or a State Review Officer may pass upon the academic standards required by the State of New York for graduation. Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 96-67;

Application of a Child with a Disability, Appeal No. 94-31.

4. 2009-2010 IEP IMPLEMENTATION.

The parents’ Complaint alleges a failure to implement the 8th grade IEP, “which required the child to be afforded the grade level curriculum.” During testimony, the mother mentioned the following issues regarding implementation of the 8th grade IEP on District questioning. M.H. v. NYC Department of Education, 2010 WL 1904005 (S.D.N.Y. 2010)(parent raised issue of the Complaint or in the record and there is no direct testimony or evidence on this point. I will remand these issues to the CSE to discuss these issues in more detail. I should note that the anecdotal evidence in the record certainly suggests that A. should be in a homeroom with typical peers. methodology in testimony; S.D.N.Y. Chief Judge Preska reversed the SRO and allowed parent to raise issue of methodology where issues raised in testimony yoked to District inquiries) Given

M.H., it is appropriate to respond to these issues. I will address these claims individually.

A. Teaching to State Standards.

The parents claim that the District did not teach A. to the New York State Standards. A memorandum from the New York State Education Department indicates that educational goals for children with special needs “should be linked to learning standards and appropriate performance indicators.” “The Learning Standards and Alternate Performance Indicators,” The University of the State of New York, The State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities

(1988)(http://www.p12.nysed.gov/specialed/publications/learnstand/lrnstd1.htm) The question here is whether the 2009-2010 instruction was “linked” to the learning standards.

A review of the New York State Learning Standards reveals that the standards are in fact sufficiently linked to the child’s IEP goals. See “New York State Learning Standards and Core Curriculum” NYSED website, http://www.p12.nysed.gov/ciai/cores.htm. For example, in the 2009- 2010 IEP, goal number 4 indicates that “A. will use knowledge of story structure and elements to identify the following: theme, plot, describe characters and setting.” There was no dispute that the student did work on this goal throughout the year. The progress report indicates that the student progressed satisfactorily on this goal for 2009-2010. This goal is “linked” to the Learning Standards for Grade 2 students, who are supposed to be able to “(d)escribe the overall structure of a story, including describing how the beginning introduces the story and the ending concludes the action.” “New York State P-12 Common Core Learning Standards for English Language Arts and Literacy,” at 18, NYSED website, http://www.p12.nysed.gov/ciai/common_core_standards.

The other goals in the IEPs can be analyzed in a similar fashion. For instance, goal number

18 of the 2009-2010 IEP relates to identifying fractions through manipulatives, visuals and illustrations. This goal is “linked” to the Learning Standards for Grade 3 students, who are supposed to be able to “(d)evelop understanding of fractions as numbers.” “New York State P-12

Common Core Learning Standards for Mathematics,” at 22, NYSED website, http://www.p12.nysed.gov/ciai/common_core_standards.

The parents seem to argue that the child should be taught to Learning Standards that correspond to her actual grade, but there is no support for such a position in law, regulation or State policy. It is reasonable for the District to teach a student appropriate goals that correspond to the student’s functioning abilities. I do not agree with the parents that the District failed to adhere to the Learning Standards for the 2009-2010 school years.

B. Reading.

The parents contend that the student did not receive appropriately implemented instruction in reading for the 2009-2010 school year. The parents contend that the IEP was not implemented properly since I. was teaching an English class at the same time as the time she was teaching reading to A. I.’s testimony confirms that she taught Special Class reading instruction at the same time as she was the teacher assigned to another class, the ASC I class. I. indicated that she was “responsible for the teaching assistant” who was leading the class. However, teaching assistants are “supplementary” personnel. 8 NYCRR Sect. 80-5.6(b). There is no testimony clearly explaining this situation and harmonizing I.’s responsibilities in regard to the ASC I class with her responsibilities regarding Special Class Reading. I agree with the parents that the District has not shown that the IEP was appropriately implemented in regard to Special Class Reading.

C. Calculator.

The parents contended that the school did not provide A. with a calculator until the fourth quarter of the school year. The IEP states that the student should use a calculator for math computation. The mother indicated that she raised this issue in meetings with the District during the year.

I. Indicated that a calculator was used “a little.” She indicated that, in discussions with the parents, the calculator “was used just to check work.” The District did not specifically rebut the claim that the calculator was not provided during the first three quarters. I agree that the District has not shown that the student was provided a calculator for the 2009-2010 school year. .D

Math Goals.

The parents contend that the student was not taught all her Math goals for eighth grade. I.

indicated that goal #17 was questionable but that the other Math goals were appropriate. The progress report indicated that there had been work on all the goals, and that a number of the goals had been achieved. This contention is without merit.

E. Homework Modifications.

The mother testified that homework modifications were not done for the 2009-2010 school year. District witnesses indicated that there was homework modification in social studies, but it is unclear from the record as to whether there was homework modification in other subjects. The District did not address this issue clearly. Since the District has the burden of proof, I am constrained to find that the District did not show that homework modifications were made in all subjects for 2009-2010.

F. Testing Modifications.

The parents claim that tests were not always provided to the special education teacher in advance so they could be modified. The IEP does provide that tests should be provided to the special education teacher in advance so they can be modified. The mother does not indicate how she was aware of this fact. A review of H.’s testimony indicates that testing modifications were consistently employed for A. I find this claim without merit.

G. 2009-2010 FAPE Denial.

The record shows that the child did not have an appropriately implemented reading program for 2009-2010. In particular, the record shows that the teacher of her reading class had responsibility for another class at the same time. However, the record does not establish that this particular implementation issue impacted the student in 2009-2010. In regard to A.’s failure to receive a calculator until the 4th quarter and the District’s failure to show that it modified homework appropriately, the record shows that the student still received a full program of Math and an appropriate amount of homework. While the District did not implement the IEP perfectly, I do not agree that the failure to implement the 2009-2010 IEP denied the child a FAPE.

5. 2008-2009 IEP IMPLEMENTATION.

The parents’ Complaint alleges a failure to implement the 7th grade IEP “which required the child to be afforded the grade level curriculum.” As with 8th grade, the mother mentioned a number of issues during testimony upon questioning from the District. There was no objection when the parents raised these issues.

A. Goals Not Implemented.

The parents contend that the goals were not entirely implemented for 2008-2009. Districts are required to implement goals on the IEP. A review of the 2008-2009 progress report indicates that goals number 14-17 were not started. There is no testimony to the contrary in the record. I agree with the parents that the goals were not entirely implemented for 2008-2009.

B. Certified Teacher.

The parents contend that the child’s consultant teacher, D., was not appropriately certified for seventh grade. The record supports this view. I agree with the parents that D. was not properly certified to work with A. for the 2008-2009 year.

C. Teaching to the State Standards, Math.

As with 2009-2010, the parents contend that A.’s 2008-2009 work was not linked to the New York State Standards. The parents contend that A.’s math work in particular should have been a modified version of the state standards.

As was the case for 2009-2010, the student’s goals are in fact linked to the New York State

Standards. In fact, goal 15 of the 2008-2009 IEP is identical to the math goal that this analysis has already linked to the math Standards. This contention is without merit.

D. Replacement not Trained.

The parents contend that D.’s replacement, F., was not properly trained as per the IEP. The

IEP indicates that the P. special education teacher and speech therapist shall provide training to general education and special education teachers “at the start of the school year” on A.’s learning style. While no doubt such training would have been helpful to F., the IEP does not require it specifically. I am constrained to find that this claim is without merit.

E. Text at Instructional Level.

The parents indicated that texts were not provided to A. at her instructional level. The IEP indicates that A. should receive supplemental expository texts which parallel the science and social studies curriculum. The parents contends that this is a “rule” of the junior high school, but the record reveals that alternative texts were used in eighth grade. B., the District’s Director of Pupil Services, indicated that alternative texts were used throughout A.’s time in seventh grade. He also indicated that the teacher might have to create their own text when they do not exist. The District has met its burden of showing that it complied with the IEP in this regard. F. FAPE, 2008-

2009.

A review of the above indicates that the District did not implement all the goals for the 2008- 2009 year. However, the record does indicate that the student received a substantial amount of math instruction. The student progressed satisfactorily in counting coins, telling time, solving two and three addition problems, identifying which operation to use. I do not agree that the failure to work on certain goals necessarily create a FAPE denial. Application of a Student with a Disability, Appeal No. 08-087 (District did not address specific math goals, but FAPE deemed to have been provided).

In regard to the claim that the District failed to implement the IEP by way of assigning D. to the student as a consultant teacher, the record shows that D. in fact performed adequately as a consultant teacher. In fact, the record shows that the record shows that the student benefitted from working with D. and that the parents sought to reconnect the student with D. after the change to F.

did not work out. I cannot agree with the parents that the District’s failure to implement the 2008- 2009 IEP caused a denial of FAPE.

6. SECTION 504.

In order to obtain recovery under Section 504 the Rehabilitation Act, 29 U.S.C. Sect. 794, a parent must demonstrate 1) that his or her child is a disabled person under the Act, 2) who has been excluded from benefits of a federally funded program or special service, 3) because of his or her disability. Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990).

Where parents assert denial of a free appropriate public education ("FAPE") as required by the IDEA, parents must demonstrate bad faith or gross misjudgment. Gabel ex rel. L.G. v. Bd. of Educ., 368 F. Supp.2d 313, 334 (S.D.N.Y. 2005); M.B. v. Arlington Cent. Sch. Dist., 2002 U.S.

Dist. LEXIS 4015 (S.D.N.Y., March 11, 2002).

Here, the claims asserted are essentially claims of FAPE denial per the IDEA. Accordingly, the parents should demonstrate bad faith or gross misjudgment to prevail. There is no argument by the parents either in the transcript or in the briefs that the District’s actions constituted bad faith or gross misjudgment. Nor have the parents put forth any clear evidence that they were denied any federal benefits because of a disability. The parents’ claims are in essence a restatements of the parents’ IDEA claims. Pinn v. Harrison Central School District, 473 F. Supp.2d 477 (S.D.N.Y.

2007); Zahran v. NYC Dep’t of Educ., 306 F. Supp.2d 204, 213 (N.D.N.Y. 2004). The claims are accordingly dismissed.

ORDER

The Impartial Hearing Officer has “broad discretion” to order relief to insure that a child receives the FAPE that they are entitled to. Application of the New York City Department of Education, Appeal No. 05-113. Since this matter took virtually the entirety of the 2010-2011 school year, relief is appropriately granted in connection to the student’s program for the forthcoming school year. Accordingly, and as a result of the foregoing, I order the following relief:

1. The District’s 2010-2011 IEP denied the student a FAPE;

2. The District shall reconvene the CSE to provide the student with general education classes in English and Science for the 2011-2012 school year;

3. Such classes shall include an individual consultant teacher for A. for the entirety of the class time in English and Science;

4. At such review, the District shall provide A. with individualized, one-to-one reading for the 2011-2012 school year with an instructor qualified pursuant to 8 NYCRR Sect. 200.6(b)(6);

5. At such review, the District shall require a FBA and BIP for the student; .6 At such review, the CSE shall discuss whether A. should have a consultant teacher in elective classes for 2011-2012;

7. At such review, the CSE shall discuss whether A. should have homeroom with typical peers;

8. The District is found to have failed to implement the IEP for 2009-2010 by failing to implement the IEP requirements for Special Class Reading, calculator use, and homework modifications;

9. The District is found to have failed to implement the IEP for 2008-2009 by failing to implement the IEP requirements for all goals and by failing to provide a certified teacher for the entirety of the school year;

10. The parents’ other claims are denied.

DATED:

June 13, 2011

____________________

MICHAEL LAZAN IHO

Footnotes

[8] NYCRR Sect. 100.1(t)(2)(iv) indicates that: Students with severe disabilities means students who have limited cognitive abilities combined with behavioral and/or physical limitations and who require highly specialized education, social, psychological and medical services in order to maximize their full potential for useful and meaningful participation

[1] The parent also indicated in testimony that she was seeking a consultant teacher for A.’s elective classes. There is very little testimony and evidence in the record on this point, which was not mentioned in the parents’ brief. The brief did mention that A. should be assigned to the respective homeroom sections of her typical peers, but there is no reference to this argument in