NY IHO #2011-ih-23: Impartial... | Special Education Law

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UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

x In the Matter of the Impartial Hearing brought upon the request of X.X. and X.X. on behalf of their child, X.X.

Petitioners,

-against-

XXXX UNION FREE SCHOOL DISTRICT,

Respondent. x

Findings of Fact and Decision XX and X v. XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED MAXXH 26, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 23, 2010

X, Parent Attorney — Student

X.X, — Parents

Academic Dean, X School, (Via Telephone) — Student

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 29, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 6, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District X, Assistant Principal, XXXX Middle School

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 17, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District X X, Teacher, XXXX Union Free School District X X, Teacher, XXXX Union Free School District X X, Teacher, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 25, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District X, Teacher, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 26, 2010

X, Parent Attorney — Student

X.X, — Parents

X A. X, Speech Pathologist — Student

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 1, 2010

X, Parent Attorney — Student

X.X, — Parents

X, Neuropsychologist — Student

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 7, 2010

X, Parent Attorney — Student

X.X, — Parents

X X, Neuropsychologist — Student

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 8, 2010

X, Parent Attorney, (Via Phone) — Student

X.X, School District Attorney, (Via Phone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 29, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 30, 2010

X.X, School District Attorney — District

X, Parent Attorney — District

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 4, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 19, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 16, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 20, 2010

X, Parent Attorney — Student

X.X, — Parents

X, Parent Attorney — Student

X X, Records Access Officer — Student

X X, Director of Technology — Student

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 24, 2010

X, Parent Attorney, (Via Phone) — Student

X.X, School District Attorney — District

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 29, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District X, House Counselor, XXXX Union Free School District

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 8, 2010

X, Parent Attorney — Student

X.X, — Parents

X.X, School District Attorney — District

X, Director of Special Education, XXXX Union Free School District X, Pathologist, Professor, St. John's University

Introduction

The parents of XX, through their attorney, filed an impartial hearing request on February 4, 2010, pursuant to 8 NYCRR 200.5(i)(1), “(as well as N.Y.S. Educ. Law Sec. 4404, 20 U.S.C. Sec. 1400, et seq., 20 U.S.C. Sec. 1415(b)(7), 20 U.S.C. Sec. 1415 (b)(8), 20 U.S.C. 1415(I0(3), Americans with Disabilities Act 34 C.F.R.S. Sec. 35 and 42 U.S.C.S. Sec. 12131, et seq. Civil Rights Act 42 U.S.C.S. Sec. 1983, 42 U.S.C. Sec. 1988, et seq. and 42 U.S.C. Secs. 1981 and 1981A and the Rehabilitation Act 29 U.S.C.S. Sec. 504, et seq., No Child Left Behind Act 20 U.S.C. Sec. 6301, et seq. and School Committee of the Town of Burlington v. Department of Education of Massachusetts, (1985), 471 U.S. 359; 105 S. Ct. 1996; 85 L.Ed. 2D 385, and Florence County School District Four v. Carter, (1993), 510 U.S. 7; 114 S. Ct. 361; 126 L.Ed. 2D 284 and their progeny).”^[1] (Ex. J2-4). The Parents alleged a denial of a free and appropriate public education for their daughter for the 2008-2009 and 2009-2010 school years and are seeking tuition reimbursement for The X School for those years.

Procedural History

I was appointed to hear the matter on February 5, 2010.^[2] The hearing was held on March 26, 2010, April 23, 2010, April 29, 2010, May 6, 2010, May 17, 2010, May 25, 2010, May 26, 2010, June 1, 2010, July 7, 2010, July 8, 2010, July 29, 2010, July 30, 2010, August 4, 2010, August 19, 20103, September 16, 2010, September 20, 2010, September 24, 2010, September 29, 2010, and October 8, 2010.

In the course of the hearing, the parents made a motion for a negative inference and other remedies. I reserved making a decision on the motion until the end of the hearing. At the close of the hearing, the parties jointly requested to submit briefs on the motion and that a decision on the motion be made prior to rendering a decision on the merits. I granted the parties request with respect to the decision on the motion. The parents' papers were due on October 22, 2010. The district's reply was due on November 5, 2010. The parents' response was due November 12, 2010. The decision on the motion was to be rendered by November 30, 2010. (Tr. 3252). The parties requested extensions of time to submit their papers due to the extensive record and they were granted. The decision on the Motion for Negative Inference and Other Remedies was issued on January 24, 2011. (IHO Ex.VIII). The parties requested additional time to submit post hearing closing statements and legal memoranda.

Extensions were granted as follows: On March 16, 2010, the parties jointly requested a 30 day extension due to the unavailability of the witnesses. The time lines were extended to May 21, 2010. (Tr. 177). On May 17, 2010, the parties jointly requested an extension of the time lines due to the extensive testimony and complexity of the issues. An extension was granted to June 20, 2010 (Tr. 874-875). On June 1, 2010, the parties jointly requested an extension of the compliance date due to extensive testimony. The extension was granted to July 20, 2010. (Tr. 1544)4. The parties jointly requested an extension on July 7, 2010 due to the extensive testimony. I granted the extension to August 19, 2010. (Tr. 1770). The parties

3 The Parents raised an objection to the scheduling of the case on August 19, 2010, and subsequently “unequivocally” withdrew their objection (Tr. 2723; see IHO Ex. VI).

4 The extension mistakenly was granted to July 30, 2010, and was corrected. jointly requested an extension due to the extensive testimony on August 4, 2010. (Tr. 2322-2323). The time lines were extended to September 19, 2010. On September 16, 2010, the parties jointly requested an extension of the time lines due to the extensive testimony and it was granted to October 19, 2010. On October 8, 2010, the parties jointly requested an extension of the time lines due to the extensive testimony. I granted the extension for a thirty day period until November 18, 2010. November 18 the parties jointly requested an extension of the time lines due to the extensive testimony and issues and to allow time for the parties to submit papers on the parents' motion to find an adverse inference. I granted an extension to December 18, 2010. (Tr. 3254).On December 3, 2010, upon the parties joint request for an extension due to the extensive record I granted an extension to January 19, 2011. On January 18, 2011, upon the parties request for an extension due to the extensive record I granted an extension to February 18, 2011. On February 18, 2011, I granted an extension to March 20, 2011. The parents requested an extension of the time lines due to personal reasons on March 7, 2011, and it was granted to March 24, 2011. On March 24, 2011, the parties jointly requested and I granted an extension of the time lines to April 23, 2011, due to the extensive record. On April 25, 2011 upon the parties joint request to extend the time lines due to the extensive record, I granted an extension to May 25, 2011. On May 24, 2011, I granted the parties joint request for an extension due to the extensive record, to June 24, 2011. On June 22, 2011, the parties jointly requested an additional week extension due to the extensive record and I extended the time lines to July 1, 2011.

The District's Position

The district maintains that for the 2007-2008 school year it removed X.X's Section 504 plan because she did not have any disabilities that affected her ability to learn. She was earning good grades, scored well on the State Math and English Language Assessments and was succeeding in class. For the same reasons, the district did not believe that there was any basis for referring her for an evaluation to determine whether she was a student in need of special education services. According to the district, the parents never asked for an evaluation or for a referral to the Committee on Special Education (“CSE”). For the 2008-2009 school year the district maintains the same position. As for the 2009-2010 school year, the district states that for the period after X.X was removed from the XXXX Union Free School District, it is not the entity responsible to provide either a Section 504 Accommodation Plan or to evaluate X.X for identification purposes pursuant to the IDEA. The district maintains that it is the district of location where the private school is located that had that responsibility. The district also argues that even if it were found to have violated its obligations under either Section 504 or IDEA, the parents still should not be reimbursed for two years of X tuition because they have not met the burden of proving that it is an appropriate placement for X.X. It is too restrictive and did not meet X.X's unique needs. Also, the equities support the district and do not weigh in favor of reimbursement for the parents. (T. 23-25, District's Closing Statement).

The Parents' Position

The parents5 allege that the XXXX Union Free School District (“the district”) failed to provide their daughter, X.X, a fourteen year old student, a free and appropriate public education (“FAPE”) for the 20082009 and 2009-2010 school years pursuant to both the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act. The parents maintain that their daughter, X.X, had a history of learning disability that continued to exist at the beginning of her sixth grade year, 2007-2008, when the district wrongfully removed her Section 504 plan. X.X required accommodations under Section 504 or an

5 When referred to individually, the parents will be identified as “KC” (mother) and “X.X. ” (father). Individualized Education Program (“IEP”) under the IDEA because she continued to have difficulty with reading, written expression and organizational issues that presented itself daily during her homework routine. She also had a speech and language impairment. She had difficulty maintaining friendships at school and was socially isolated and anxious. The parents allege that they continually asked for a review or an appeal of the decision to remove X.X's 504 plan and requested an evaluation or consideration for a CSE review. They could not understand the discrepancy between the good grades X.X was receiving at school and the work they saw at home, including that completed at school. The parents also provided the district with independently obtained evaluations documenting a number of disabilities. The parents maintain that for the 2008-2009 school year, they removed X.X from the district, with notice, and placed her at The X School (“X”), a private special education school that is not approved by the State Commissioner of Education as a school with which school districts can contract to instruct students with disabilities. (see 8 NYCRR 200.1[d], 200.7). She was a residential student. The parents claim that the district failed to provide a FAPE by failing to refer X.X for an evaluation pursuant to their requests or its own child find obligations, failing to classify her and failing to provide her with necessary services. For the 2009-2010 school year, the parents kept X.X at X because . The parents allege that the district failed in its Child Find obligations by failing to evaluate, classify and provide the appropriate services for X.X for the 2009-2010 school year. The parents continued her placement at X because it was appropriately meeting X.X's individual special education needs. The parents are seeking a declaratory judgment that the district failed to offer X.X a FAPE for the 2008-2009 and 2009-2010 school years, that The X School was an appropriate school for X.X and that equitable considerations favor an award of tuition reimbursement to the parents.

DOCUMENTS IN EVIDENCE

Psychological Report, Dr. X, The XXXSchool in XXX May 4, 17, 2004

At the time, X.X was 8 years 7 months and in second grade. She received speech therapy beginning January 2003 for approximately twelve months to address articulation problems. The therapy focus was on pronouncing words. (Ex. J2A-1). In the first grade (2002-2003), X.X's teacher described her as a “very confident public speaker.” (Ex. J2A-2).

The report notes that in January 2004, X.X was referred for an evaluation that indicated lags in phonological processing skills and she was placed in the Reading Support Program. It was noted that her “oral reading can be choppy and rushed, with slurred words.” She also was referred to “Earobics”, a program described as training students in phonological processing skills. (Ex. J2A-2). An October 2003 speech and language evaluation noted that X.X “demonstrates communication difficulties in the areas of expressive language, primarily articulation of specific sounds, relative to her chronological age....” She obtained a score of 85 on the Goldman Fristoe Test of Articulation. (Id).

X.Xwas found to have overall cognitive ability within the average range (55th percentile) with weaknesses in basic reading, numerical operations and written expression. Significant attentional weaknesses also were identified. She was diagnosed with Specific Learning Differences (“SLD”) across these subject areas. She was recommended for the SLD program for continued work in the areas of reading and writing, as well as a specific focus on math computation. (Ex. J2A at 13-14).

Psychoeducational Re-evaluation Report, Dr. X, The May 15, 2006

XX, a fourth grader, was returning with her family to live in the U.S. and was re-evaluated by Dr. Marcia

X, to assist in her transition to her new school in XXXX. (Ex. D-11). Her fourth grade teacher described her as “focused, on-task, motivated and hard-working. X.X asks questions for clarification, and has shown huge improvement in writing and reading fluency.” Relative weaknesses were noted as “reading aloud in class and is a nervous test-taker” (Id. at 2). Successful strategies included SLD support, and peer and small group instruction. She was noted as working with the Learning Specialist for one hour per day for literacy skills. The Learning Specialist viewed X.X's strengths as her ability to independently use the strategies she was taught and ask for clarification when needed. She relied “heavily” on all available supports and strategies. Relative weaknesses noted by the Learning Specialist were “difficulty processing any information that is delivered verbally without visual support.” She required multiple repetitions. She was noted to have difficulty reading social cues from her peers accurately. “Her LS teacher believes that [X.X] needs “continued support in all of the academic areas (decoding, encoding, reading comprehension, reading fluency and written expression) except math.” She additionally recommended a small classroom environment where there likely would be less noise interfering with her ability to process auditory information and one with a clear routine and structure. (Id. ).

The Wechsler Abbreviated Scale of Intelligence (WASI) was administered to provide an estimate of X.X's intellectual potential or rate of learning. Her Full Scale IQ was found to be in the 53rd percentile, comparable to the 55th percentile finding two years earlier. She continued to show high average verbal concept formation abilities and average vocabulary knowledge. X.X's scores on the non-verbal subtests ranged from low average (Block Design) to just within the superior range (Matrix Reasoning).

To assess X.X's academic achievement, selected subtests of the Wechsler Individual Achievement Tests-II

(WIAT-II) were administered. In Word Reading, X.X achieved a standard score of 96, placing her in the Average range or 39th percentile. Compared with her previous scores, X.X “made slight improvement in her basic word reading skills”. Similarly, she showed a bit of improvement in her phonological skills, scoring 106 or average range in Pseudoword Decoding. In Reading Comprehension X.X also scored within the average range, with a standard score of 95. “She was more challenged when required to use context to determine word meaning, recognize implied cause and effect, identify fact or opinion and make inferences.” (Ex. D11-4). The evaluator found that her reading scores “are within expectancy for her ability.” (Id.). In Spelling, she received a standard score of 93, just within the average range. The report notes that while she “has not lost ground with her spelling, ... it remains an area of relative weakness for her.” (Id). X.X's performance on the Written Expression subtest resulted in a standard score of 104, which falls within the average range and reflected an 18 point standard score improvement compared to her second grade test scores. (Ex. D11- 5).

In the Math Reasoning subtest X.X scored at the top of the high average range (116) which is “markedly higher than her previous score.” On the Numerical Operations subtest she received a standard score of

108, near the top of the average range. She was found to be performing above expectancy in math. The testing psychologist opined that the improvement might be attributed to her medication regimen. (Ex.

D11-5).

Dr. X concluded that X.X's “educational plan had addressed the needs that were designated”, particularly in written expression. (Ex. D11). With academic support she was able to meet the goals of her IEP and to participate in the mainstream academic program. “No significant social/emotional issues were noted in

[XX’s] profile. Parent and teacher ratings did point to areas of concern related to adaptability, atypicality and withdrawal, which should be monitored as [X.X] transitions to her new home and school.” (Id.).

Dr. X wrote: “Given her measured rate of learning and relative achievement levels [X.X] may no longer qualify for SLD support under IDEIA, although she would continue to benefit from tutorial support for literacy skills, specifically reading and written expression.” (Ex. D11). X.X was noted to have made

“overall improvement”, having learned compensatory strategies and an ability to seek help. “The task demands of her new school will determine the amount of support [X.X] may warrant.” (Ex. D11-5).

Dr. X further noted that X.X had been given additional time and separate seating for the ERB assessment and used the 50% additional time (25 minutes on the ERB) that was given during the 2005-2006 writing assessment. (Id).

Psychoeducational Re-evaluation Report, Dr. X, The June 14, 2006

This report is identical to the report of May 15, 2006, in all respects except the Summary/Conclusions section. (Ex. J2B; compare Ex. D11). The changed language is in italics.

Dr. X concluded that X.X's educational plan had addressed the needs that were designated. She made

“solid progress” in her designated areas of need, particularly in written expression. Dr. X concluded:

“Given her measured rate of learning and relative achievement levels based on this assessment, [X.X]

may no longer qualify for SLD support under IDEIA, although this reevaluation was completed at parent request to provide information to her receiving school. Her new school may wish to honor the existing

AIEP as she transitions to a new learning environment, as [X.X] would continue to benefit from tutorial support for literacy skills, specifically reading and written expression....The task demands of her new school will determine the amount of support [X.X] may warrant. If tutorial support for regular education is available, it is important that [XX’s] teachers and learning specialist/tutor work collaboratively and communicate regularly.” (Ex. J2B-5).

Dr. X added: “Given her diagnosis, [X.X] will, at a minimum, be eligible for a 504 agreement for accommodations.” She further noted that X.X had been given additional time and separate seating for the

ERB assessment and used the 50% additional time that was given during the 2005-2006 writing assessment “(which translates to 25 minutes additional on the ERB writing test).” (Id.).

Physician's Letter/Diagnosis, October 26, 2006

Dr. X wrote that X.X had been diagnosed and treated for Attention Deficit Disorder by his office. She “is being treated with mg.” (Ex. P45).

504 Report, Teacher Lorraine X, October 31, 2006

XX’s fifth grade teacher, Lorraine X, wrote: “She is able to get her basic ideas down on paper, but she benefits from writing conferences during which she is able to verbalize her thoughts and receive assistance in expanding and organizing her ideas.” She is noted to incorporate the suggestions she is given and improve the quality of her writing “to construct well-organized and detailed written pieces.”

(Ex. P2). Expository writing is more of a challenge “because it often relies on her reading comprehension of novels or textual documents.” The teacher is working on “helping her to maintain focus while reading as well as working on her reading comprehension strategies.” She is noted to benefit from graphic organizers and extra time “when demonstrating comprehension through writing” and requires support in her spelling and mechanics. (Id.)

X.X is noted to understand math concepts. At times she needs help with multi-step word based problems which the teacher attributes to her reading comprehension skills. X.X asks for clarification and repetition of directions as she needs them. Ms. Mannario concluded that X.X “has demonstrated the ability to keep up with the fifth grade curriculum while receiving support in the above specified areas.” (Ex. P2).

Section 504 Accommodation Plan, October 31, 2006

The plan notes that the meeting was for an initial referral. Under “Limited Major Life Activity”, the recommendations include: “[X.X] has been diagnosed with and is unable to complete work in a typical amount of time.” (Ex. J6-1). The services and supports recommended for X.X included:

preferential seating; refocusing and redirection; and, extended time assignments at teacher discretion. X.X received testing accommodations including extended time (1.5) for standardized and classroom tests

(when needed), as well as special location and an adult to re-focus for standardized tests. (Ex. J6-2). The

Comments section notes: “New entrant screening and teacher assessments indicate that building level LX service would be beneficial and she is seen 3X/week for work in written expression and reading comprehension. [X.X] is on medication to address her attentional issues but can still be distracted and require extra time to complete work and tests. She works slowly and needs time to process but can be successful on academic tasks, when given the time she needs.” (Id.).

The determination was based on a teacher report from October 31, 2006, a physician's letter dated October 26, 2006, and a psycho-educational evaluation from June 14, 2006. (Ex. J6-1).

Section 504 Committee Meeting Information, October 30, 2007

The student was noted to be in the sixth grade. The meeting participants in attendance included: X X,

Assistant Principal and 504 Chairperson; X X, School Psychologist and 504 Co-Chair; X X, House

Counselor; X X, Math Teacher; X X, Social Studies Teacher; X X, English Teacher; X X, Science Teacher; XX, Parent; X X, Parent (by teleconference). (Ex. J2C).

The Comments section notes that X.X “is currently taking medication to address” her diagnosed attentional issues. (Ex. J2C). The comments continue: “The teachers each reviewed [XX’s] progress this year. The teachers all reported that [X.X] has had a very successful start to the year. She has performed well on tests, quizzes and homework assignments. The teachers indicated that she has not required any extra time on her tests or quizzes.” (Id.).

The parents were noted to have “expressed their concerns about her being able to maintain this level of success. When they work with [X.X] they feel she has has difficulties with reading comprehension, outlining and organization.” (Id.).

The “Based Upon” section lists: a Teacher Report dated 10/30/2007, a Physician's letter dated 10/26/2006 and a Psycho-Educational Evaluation dated 6/14/06. The 504 Committee “determined that [X.X] does not meet the eligibility requirements for continuation of a 504 Accommodation Plan.” (Id.).

E-mail from M. X to XX, November 2, 2007

The teacher confirmed that XX requested additional time to finish a math test. “This was within the time limits given to all students.” (Ex. P1-1).

Parent letter dated November 19, 2007

XX references a meeting that took place with Dr. X, Director of Special Education for the XXX, on November 13, 2007, and requested “an appeal” of the 504 Committee's decision to discontinue her daughter's services. The parent wrote: “As we discussed, we believe that there is a substantial amount of information that supports our position that [X.X] needs at a minimum a 504 plan and, more likely, classification under the IDEA. We respectfully request that you conduct a review of the matter as soon as you are able and advise us of the status of reinstating her 504 plan.” (Ex. J2D).

E-mail from XX to Dr. X, January 5, 2008

XX inquired about “the status of[XX’s] 504 plan”, referencing her letter of November 19, in which she asked “for an appeal of the decision to remove [X.X] from this plan.” (Ex. P5). She informed Dr. X that

X.X's psychological evaluation was just started, but will not be completed until the end of February. She informed Dr. X that X.X “needs additional help in the resource room. How do we go about arranging for this? Do we ask for another CSE meeting?” (Id.).

E-mail from XX to Dr. X and X. X, January 13, 2008

XX wrote to Dr. X and Mr. X regarding the upcoming ELA exams and stated her expectation that X.X would be given the 504 accommodation from the plan that was removed pending the outcome of the parents' appeal of that decision. XX highlighted the fact that X.X had and used extra time on her fifth grade test and that recently she asked for extra time on a math test and the teacher accommodated her. (Ex.

P47).

E-mail from XX to X. X and Dr. X, February 4, 2008

XX wrote to inform them that Dr. X's psychological evaluation and report should be finished by the second week of March. She added: “I want to give you sufficient time to plan a CSE meeting after this date. I would appreciate some notice as I will be asking Dr. X to join us in this meeting.” (Ex. P51).

Letter, Dr. X to Parents, dated February 11, 2008

Dr. X stated that the letter's purpose is to “detail” his findings and “address” the parents' appeal. (Ex. J2E).

Dr. X stated that he reviewed the psycho-educational evaluation dated June 14, 2006, and X.X's then current transcript grades, as well as spoke to her teachers, House Counselor and the parents about her ability to meet the demands of the curriculum. He noted that the June 14, 2006, WIAT-II academic performance levels all were in the average range. He highlighted her math abilities as “an area of strength with math reasoning well above average.” He commented: “Despite her good math skills (as assessed by the WIAT II), she obtained a C-plus in the most recent quarter and represents her lowest grade.” Her overall performance “is in the B range” (Id.). Dr. X continued: “Her teachers report that [X.X] has not demonstrated a need for accommodations and seems to complete all assignments in a timely way” (Id.).

This is consistent with last year's XXX performance as reported by the school's psychologist. (Ex. J2E-2).

Dr. X concluded that X.X did not have a condition that “substantially limits her learning or school performance” and therefore he had no basis “to alter the determination made by the school's 504 team.”

(Ex. J2E-2).

Neuropsychological Evaluation, X, January and February 2008

The student was 12 years and 3 months old. The parents were noted to be concerned about weakness in reading fluency, reading comprehension, written expression, spelling, handwriting, and organization. In addition, X.X had difficulty with organization and verbal expression. Dr. X found that X.X met criteria for the following disorders as per the DSM-IV diagnoses: Expressive Language Disorder, Attention Deficit Disorder, Inattentive Type, Reading Disorder, Disorder of Written Expression and Developmental Coordination Disorder. (Ex. J2F).

Dr. X noted X.X's teachers comments regarding her performance:

English teacher comments: “She has trouble organizing her thoughts and uses basic sentence structures- but no more so than many 6th graders.”

Science teacher: “X needs to show a more consistent effort in completing class assignments and in preparing for exams.” “She should come in for extra help prior to exams.”

“She needs to be more consistent with assignments she hands in for grading; the last two assignments were not up to expected standards.”

Math teacher” “Organization needs improvement.”

Dr. X's behavioral observations included: Although she was well-related, her speech was “often unintelligible” and she was frequently required to repeat and/or clarify her responses. In addition she experienced difficulties with following complex instructions, and required repetition and/or added explanation.

In Dr. X's interpretations she noted that X.X “exhibited considerable variability in her performance.” She emphasized: “This is a pattern that can often be associated with attentional difficulties, and raises the possibility that, in some instances present scores may underestimate her level of ability.” (emphasis in original). (Ex. J2F-4). Dr. X found her findings consistent with “previous evaluation”, in that her WISC-

IV scores all fell in the Average range.

XX’s performance on the Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV) indicated a full scale IQ standard score of 101 (53%). (Ex. J2-F). All of X.X's composite scores were in the Average range as follows: Verbal Comprehension Index 98 (45%); Perceptual Reasoning Index 104 (61%);

Working Memory Index 94 (34%); and, Processing Speed Index 106 (66%). On the Verbal Comprehension Subtest Scores, X.X also scored in the Average range with a Comprehension result of 9 which is the low end of average.

On academic testing in reading, X.X was administered a variety of tests. (Ex. J2F-21,22). On the Comprehensive Test of Phonological Processing (“CTOPP”) she scored in the low end of the average range on the Rapid Digit Naming subtests (25%) and Rapid Object Naming subtest (25%) while scoring in the average range (37%) on the Rapid Letter Naming subtest (Ex. J2F-21). X.X's performance on the Gray Oral Reading Test (“GORT”) resulted in a Reading Rate score in the Average range (37%), a Low Average score in reading accuracy (16%), a Low Average score in Fluency (16%), and a High Average score in Comprehension (84%). (Ex. J2F-21,22). Her overall Oral Reading Quotient was 100 (50%) in the Average range. (Ex. J2F-22). On the Stanford Diagnostic Reading Test-4th Edition (“Stanford”), X.X scored in the Average range in Comprehension (55%), Initial Understanding, and Interpretation subtests and in the High Average range in Critical Analysis and Process Strategies. (Ex. J2F-22). Dr. X noted that

“[d]isturbances in rapid word retrieval/rapid automatized naming may impact the automaticity of word identification and, as a result, reading fluency.” (Ex. J2F-6).

In her summary, Dr. X noted X.X's relative strengths in immediate recall of contextual information, as well as in reading comprehension. “Further more, her high average performance on a measure of critical analysis on a silent reading comprehension test, revealed that she is capable of thinking on a relatively high abstract level.” (Ex. J2F-14).

In written expression, X.X scored in the Low Average range on the Test of Written Language Third Edition (TOWL-3), Contrived Writing (25%), with Average scores on subtests of Vocabulary, Spelling,

Style, and Sentence Combining. On the Logical Sentences subtest she received a Borderline score (5%).

On Spontaneous Writing she received a Low Average score (10%), including the subtests of Contextual

Conventions (16%-Low Average), Contextual Language (55-Borderline), and Story Construction (37%-

Average). X.X's Overall Writing score on the TOWL was an 86 (18%- Low Average). (Ex. J2F).

In math, on the WIAT-II, X.X received an Average score for Numerical Operations (58%) and a Low Average score on Math Reasoning (23%), resulting in an Average composite score. She received an

Average range score on the Woodcock Johnson-III (WJ-III) Math Fluency test (71%). (Ex. J2F-22).

On tests assessing Attention, X.X scored in the Superior range in Sequences (Children's Memory Scale –

91%) and High Average on Symbol Search (WISC-IV-75%). She scored in the Average range on Forward

Digit Span (47%), Letter Number Sequencing (WISC-IV-50%), Coding (WISC-IV-50%), and Recalling

Sentences (CELF-4-37%). She scored in the Low Average range on Backward Digit Span (18%).

Testing X.X's Executive Function skills using the Delis-Kaplan Executive Function System Test (D-

KEFS), Dr. X found X.X's scores consistently in the Average range or above, with the exception of her score on Nonperseverative Errors, which was in the Low Average range (12%) (Ex. J2F-23). On tests of

Verbal Memory and Learning, using the CMS and the California Verbal Learning Test-C, X.X scored in the High Average to Average range, except in Word Pairs (Learning) on which she scored in the Borderline range and Semantic Cluster Ratio in the Low Average range. (Ex. J2F-24).

Dr. X noted that in the areas of Attention/Executive Functioning, “[s]everal measures were elevated significantly, and indicated problems with impulsivity, vigilance deficits, limitations in quickly and effectively perceiving or processing stimuli, as well as reduced ability to adjust to changes in task demands. Overall, her performance suggested a clinical classification of an “ ”.

(Ex. J2F-14).

In areas of executive functioning, X.X “evidenced weakness in working memory, which can impact several areas of functioning, including reading comprehension, comprehension of instructions, ability to follow directions and problems with completing complex, multi-step tasks. Because of weakness in working memory, it was particularly important that she used effective strategies for organizing information. However, she exhibited notable difficulties with devising and implementing effective strategies for organizing complex, unstructured information.” (Ex. J2F-14).

On tests of oral language, X.X scored in the High Average range on the Boston Naming Test (77%),and

CELF-4 Understanding Spoken Paragraphs. She tested in the Average range or within normal limits on

Reading Grammar and the Menyuk Syntactic Comprehension Test. On the WJ-III Oral Comprehension test X.X scored in the Low Average range (19%). (Ex. J2F-24,25). On the Test of Language Competence-

Expanded Edition (TLC-E) X.X scored in the Borderline range on Ambiguous Sentences (5%) and Oral

Expression (9%) and in the Average range on Making Inferences (50%) and Figurative Language (50%).

(Ex. J2F-25). Dr. X noted that X.X's “performance was intact on receptive measures of language competence, but it was significantly below her ability on expressive measures.” (Ex. J2F-12).

Dr. X found that receptively, X.X's language “was intact on measures of syntactic comprehension as well as comprehension of discourse..., she often experienced difficulties with following complex instructions, and required repetition and/or added explanation.” (Ex. J2F-15). “ [X.X] was well-related and communicative, even though her speech was often unintelligible. Nevertheless, she was able to make herself clear with repetition and/or revision of her responses.” (Ex. J2F-11). “Formal testing revealed weakness with rapid word retrieval, which most likely contributed to difficulties with verbal formulation.”

(Ex. J2F-15).

XX’s Motor/Visuomotor Functioning was found to be in the Low Average range and her

Visuospatial/Visuoconstructional Abilities in the Average range. (Ex. J2F-25). Dr. X noted X.X's weak performance and found: “[i]t is highly likely that her notable impulsivity exacerbated her performance, and also contributed to marked inattention to detail.” (Ex. J2F-13).

Dr. X noted social/emotional difficulties. She observed trichotillomania (pulling out her eyebrows) which she noted “can be a manifestation of anxiety.” (Ex. J2F).

Dr. X concluded that X.X “continues to exhibit considerable difficulties in areas of attention/executive functioning, as well as language functioning.” (Ex. J2F-17). “These difficulties are having a significant impact on her academic achievement and they also appear to be having an increasing impact on her social/emotional functioning....Depriving her of services at this critical period of her life, when academic demands are increasing in their level of abstraction as well as volume, is bound to set her on a course of failure” (Id.).

Dr. X recommended that X.X receive speech/language therapy to address her difficulties with articulation/intelligibility, word retrieval, language formulation and pragmatics. She also recommended remediation of weak decoding skills. Dr. X recommended an assistive technology evaluation. Her other recommendations included that X.X receive extended time on all timed tasks including standardized and classroom tests, projects or assignments, preferential seating, directions repeated, use of a laptop due to dysgraphia, marking answers in test booklets instead of using a “bubble” format, sets of notes for content- heavy classes, guided outlines before and after class. Additionally, she recommended intervention including speech/language therapy, social skills training in a group and individually, monitoring of medication and psychotherapy. (Ex. J2F-17, 18, 19).

Speech and Language Evaluation by X X April 10, 14, 16, 17, 2008

XX’s auditory acuity was found to be within normal limits. (Ex. J2G-2). Dr. X found that X.X “seems to exhibit a speech and language dysfunction, affecting her phonemic and syntactic levels of language, including her auditory processing and sequencing of linguistic data....This could impact on her emotional component, and academic abilities, as well.” (Id.). Speech and language pathology treatment sessions were recommended a minimum of twice a week. (Id.).

The parents referred X.X for the evaluation because of X.X's “present level of speech and language abilities” which the parent did not think were commensurate with her daughter's age, 12 ½ years. Dr. X noted that X.X needed to be prompted to expand beyond her usual one and two word utterances.

“Articulation was marked by errors in place of articulation of the lingua-blade alveolar frictive phonemes, both voiced and voiceless.” (Ex. J2G-1). A peripheral speech mechanism evaluation showed that X.X was “anatomically and physiologically within normal limits for appropriate vegetative and speech functions.”

(Id.). “A reverse swallow with a tongue thrust was noted.” (Ex. J2G-2).

“Formal testing gave evidence of auditory processing and sequencing difficulties along with some word finding difficulty.” (Ex. J2G). Testing included subtests of the Detroit Tests of Learning Aptitude

(“DTLA”). On the verbal absurdities subtest X.X scored at 8.9 years “seemingly due to her reasoning of linguistic data auditorily presented to her, and some word finding difficulties to express her thoughts.

Similar performance was evidenced on the Social Adjustment, a test which also relied on auditory reasoning, synthesizing and ultimately orally expressing her thoughts with the appropriate words.” (Ex.

J2G-2). On Verbal Opposites X.X scored 11.9 years. X.X placed at the 4.9 years level on the Auditory

Attention Span for Unrelated Words, the 9.9 years level on the Auditory Attention Span for Related

Syllables, and the 10.6 year level on the Oral Directions test. (Ex. J2G-2).

Dr. X performed the audiometric evaluation because X.X “frequently” asked her to repeat directions as well as test material. (Id.)

Brief Psychiatric Evaluation, Dr. Alexander X, April 28, 2008

X has “clinically documented Attention Deficit Hyperactivity Disorder. She receives Methylphenidate

(Concerta) 27 mg. per day, which appears to be well-tolerated, with good effect.” (Ex. J2H).

Dr. X diagnosed X.X with Learning Disorder, Not Otherwise Specified, Attention Deficit Hyperactivitiy

Disorder and Adjustment Disorder Not Otherwise Specified. (Ex. J2H-2). His impressions included the observation that she “exhibits significant neuropsychological disabilities and appears to be achieving academically only by virtue of an intense level of effort on her part, coupled with close emotional and academic support from her parents, and a strong desire to please and perform for the authority figures

[X.X] respects.” (Ex. J2H-1). He notes that X.X's “level of academic achievement is significantly short of what it ought to be for a young woman who is trying this hard. There is considerable reason to be concerned that she may not be able to sustain this degree of achievement. There is, furthermore, a basis for concern that [X.X] may suffer emotionally and intellectually from the problems she is struggling with, despite the fact that she is able to attain an “average” level of performance.” (Ex. J2H-2). He found that X.X is “suffering from a neuropsychological condition...: she is in a state of psychological distress and neuropsychologically-compromised capacity, which she overcomes by virtue of a continual application of effort. There is every reason to be concerned that as the academic demands on her intensify, that she would be less able to meet the “average” mark.” (Ex. J2H-2).

Dr. X recommended: “it is strongly in [XX’s] interests...to receive academic accommodations and supports now, rather than waiting for a catastrophic failure in her capacity to perform.” (Id.).

Letter from X X S. X, May 8, 2008

X X, Diplomate in Binocular Vision and Perception, found that X.X has Oculomotor Dysfunction and

Convergence Excess. (Ex. J2I). He recommended “Orthopic therapy to address Stress Eye Teaming abilities, Ocular motor and Visual motor skills”. He recommended that X.X be allowed to take all tests untimed until her condition is resolved. (Ex. J2I-2).

OOO Letter from X X S. X, May 11, 2008

Dr. X wrote: “Patients like [X.X], who have Convergence Excess and Oculomotor Dysfunction usually report discomfort or distraction when they attempt to read for meaning. This is especially true when they are under time pressure.”(Ex. J2-J). He added that timed standardized educational tests “will not reveal her true academic potential. It would, therefore, be desirable to allow [X.X] to take all such tests with double time and with rest breaks between sections.” (Id.).

Letter from X X to Dr. X, May 16, 2008

X. X. , an attorney, stated that she represents the parents and requested a 504 meeting to determine X.X's eligibility. She attached an evaluation by Dr. X X. (Ex. J2G,1-2). The parents were requesting 504 eligibility, individual speech and language therapy, testing accommodations to have directions clarified and extra time. Additionally, the parents wanted resource room to teach X.X organizational strategies and to be sure she understands homework assignments. (Ex. J2G-3).

Section 504 Committee Meeting Information, June 12, 2008 (Exhibit incorrectly states 10/30/07)^[6]

The meeting was attended by X X, House counselor, XX, the parent, X. X. , attorney for the parent, X, and X. X. , speech therapist. X.X's parents submitted a speech evaluation performed by Dr. X X who found that X.X had “a mild articulation problem and some delays in language and recommended language therapy. No modifications in programming were recommended.” (Ex. J2K-2). The comments note that X.

X. stated that the test administered by Dr. X, the DTLA, is not one typically administered as part of a speech evaluation. (Id.).

The comments indicate that X.X was receiving As and Bs in school. Her parents claim that she has received these grades because she continued to receive extra time and their attorney identified a number of dates when “allegedly [X.X] took an examination and requested extra time from her teachers to complete the test.” (Ex. J2K). “According to the Counselor's report from [XX’s] teachers, X.X has not demonstrated a need for extended time.” (Id.). Dr. X is noted to have said that for a child to be given accommodations, whatever condition is identified, “it must rise to the level of a disability” before a 504 Plan can be created. “Based on her current school performance, it does not appear that her speech and language “condition” as identified by Dr. X is significantly impairing her ability to meet classroom demands. Further she is not being denied access to any program or service based on the “condition”. (Ex.

J2K-2).

The comments also indicate that X X requested a full evaluation. Dr. X asked if the evaluation was requested pursuant to Section 504 or the IDEA, and said to put it in writing. Ms. X stated that she wanted to discuss this with the parents and that she would inform the 504 team as to how she wanted to proceed.

(Ex. J2K-3).

E-mails between XX and X X, June 13, 16, 2008

The parent requested and received confirmation from the teacher that X.X required extra time to complete a science test. Teacher indicates that it was five minutes to check answers while parent states that X.X told her she needed to complete work as well as check it, taking approximately 12 minutes. (Ex. P1-2).

Letter from X X, 7/14/08

In a letter from a therapist, X X, from XXXX X Family Counseling Service who worked with X.X for eight weeks/eight sessions in a Social Skills Group, she wrote that she “was very concerned” when she observed X.X's communication skills. She observed X.X have “a difficult time expressing herself verbally as well as a delayed processing of auditory instructions.” (Exh. J2M). Her skills in this area “were well below the level of her peers....” (Id.).

Letter from Dr. X X to X, July 24, 2008

Dr. X wrote to memorialize a telephone conversation of the same date in which she asked that paragraph four of the comments section of the 504 meeting be deleted “because it is completely inaccurate in it's commentary.” (Ex. J2l-1). She explains that she used the DTLA “because it is language based and is one of the few measures that reaches chronological levels through 19 years. ...I used specific subtests that would measure this young lady's auditory processing and sequencing skills....[X.X] had difficulty with linguistic data that was auditorily presented to her, along with some word finding deficits which accounted for her low scores. She repeatedly asked me to repeat test material to her that was presented to her in sentence form. This concerned me to the extent that I gave her an audiometric examination, air and bone, to rule out any hearing impairment” (Id.).

E-mail from X to X X, September 8, 2008

Dr. X informed Ms. X that he spoke to X.X's parents during the weekend and “they have enrolled her in X for the year.” (Ex. P82-47).

Letter from Dr. X to Parents, October 20, 2008

Dr. X references the meeting he had with the parents on August 8, 2008, and that the parents asked him to consider the letter from X Family Counseling, “a neuropsychological, an ocular motor evaluation, a psychological evaluation a language assessment and a recent school transcript.” (Ex. J2N). He reviewed

X.X's history as presented by the parents at the meeting and noted the additional concerns of the parents at that time including that X.X “has been observed pulling out her eyebrows when anxious. She also has difficulty making and sustaining friends.” (Ex. J2N-2).

Referring to X.X's removal to X, he informed the parents: “This change in placement therefore moots the need to offer her accommodations.” (Ex. J2N-2).

While advising the parents that any determination he made as of that date would not be controlling should

X.X return to the XXXX Schools, in response to the parents' request to “proceed as if she remained a student in the XXXX Schools”, Dr. X wrote: “It is uncontroverted that she performed poorly on some of the diagnostic evaluations. Based on their testing, the evaluators prognosticated that [X.X] will have difficulty on various academic tasks that require cognitive organization, attention/executive functioning, reading and writing. The psychologist attributed [XX’s] difficulties to an expressive language disorder, attention deficit, reading disorder, disorder of written expression and developmental coordination disorder.

The optometrist thought she presented with a convergence and ocular motor disorder and the speech therapist pointed to a speech and language dysfunction.

According to [XX’s] teachers, however, the predicted levels of frustration and deficit have not been observed. [XX’s] teachers describe her as a student who has been making adequate progress. Even on State examinations (English Language Arts and math), X.X demonstrated mastery on each test.” (Ex. J2N-

2).

Dr. X acknowledged that the teachers could not observe or assess the level of anxiety or support needed outside of school. “In talking to some of the school staff who worked with [X.X], they did see some variability in her anxiety, but at no time did she lose control of her emotions. It is conceivable that school demands did make [X.X] feel anxious at times and as a consequence her performance fluctuated. While her teachers did not believe that her writing skills were significantly lower than other students, they did acknowledge that she did require some help. To that extent the help they suggested could be provided in the after school TAS program. Through some changes in her schedule, it might also be feasible to provide her with support during the school day.” (Exh. J2N-3).

Dr. X described the impact on X.X's learning and school performance as, “marginal”. (Ex. J2N-3). “There is no question that the Middle School staff would have arranged for her to receive support services without the need for a 504 Plan. The only exception may in [sic] the area of writing where additional time may be required on examinations that require a lengthy essay (e.g., 3 paragraphs).” (Id.).

X Mission Statement

“The mission is to empower students with dyslexia to reach their academic potential and to equip them for future success.” (Ex. J14). The school strives “to remediate skills in reading, writing, and spelling, to provide intellectually stimulating subject matter courses in mathematics, literature, science, and social studies, and to foster confidence.” The academic program “revolves around intensive, daily one-to-one

Orton-Gillingham tutoring for each student. (Id.).

Invoice dated 6/1/08 -12/09/08

Tuition for 2008-2009 - $50,150.00 in payments credited for 5-Day Board ($900.00 mandatory athletic fee included). (Exh. J2O-1).

Triton for 2009-2010 - $50, 537.00 credited for 5-Day Board (including $900.00 mandatory athletic fee)

$2,612.50 noted as “Discount Granted” in the credits column. (Exh. J2O-2).

11/3/08, X Letter and ( checklists

Of nine teachers surveyed, including those who attend to the student for tutoring, study hall and dormitory, “[f]ails to give attention to details or makes careless mistakes in schoolwork”, “[e]xperiences difficulty sustaining attention to tasks or activities”, in math and history as well as tutoring and study hall.

[d]oes not follow through on instructions and fails to finish schoolwork”, [e]xperiences difficulty organizing tasks and activities.” (Ex. J14).

Psychological Evaluation, X X, November 23, 2009 - December 21, 2009

Dr. X wrote that the purpose of the evaluation was to determine the student's profile of learning strengths and weaknesses and to make recommendations to aid in educational planning (Exh. J2P). The parent reported “learning issues and dyslexia” (id. at 3). X.X was tested on her prescribed medication (27mg

Concerta).

Dr. X reported that X.X has at least average intelligence and that she presents with a language based learning disability and dysgraphia. Dr. X confirmed the diagnosis of also was concerned with

X.X's flat affect and anxiety. Her diagnoses included: Expressive Language Disorder, Attention Deficit Disorder, Inattentive Type, Reading Disorder, Disorder of Written Expression, and Developmental Coordination Disorder (Dysgraphia). She also noted low average skills in visual processing speed. (Ex.

J2P-35).

“XX’s overall intellectual status as measured by the WISC- IV and the Kaufman Adolescent Intelligence

Test (KAIT) is within the Average range, consistent with prior reports. Significant variability among the subtests that comprise the KAIT is noted; scores range from the 25th to the 95th percentile. All pair-wise comparisons of Working Memory and Processing Speed, with cognitive abilities are significant at the .05 level. In fact, all Index Comparisons are significant, indicating uneven cognitive development, consistent with learning disability.” (Ex. J2P-16).

Dr. X highlighted: “Reading Decoding, Reading Comprehension, Spelling and Reading Rate are compromised on multiple measures. Reading Comprehension on the WIAT-II is at the 18th percentile, national norms. Reading Rate on the TOWRE (17th and 19th percentile respectively) and the WIAT II

Reading Speed is at the 1st quartile.” (Ex. J2P-16).

Dr. X noted: “at this point in time, the dyslexia is still apparent and still has a profound impact on her life.” (Ex. J2P-17). X.X meets the criteria of “Reading Disorder” as stipulated in the Diagnostic and Statistical Manual; Fourth Edition (DSM-IV) of the XXXPsychiatric Association (p.48):

“The essential feature of Reading Disorder is reading achievement (i.e., reading accuracy, speed or comprehension as measured by individual administered standardized tests) that falls substantially below that expected given the individual's chronological age, measured intelligence and age-appropriate education.”

On the WISC IV, X.X scored in the average to high average range in all areas, with the exception of visual processing speed which was low average.

Dr. X reported that weaknesses in executive functioning were displayed (Ex. J2P-21). Low average functioning in reading comprehension and written expression were revealed. Low average functioning was observed in the area of word retrieval. Pragmatic language skills were measured to be at the 7th percentile. (Ex. J2P-19).

X Progress Reports, Dr. X's File, October 2008-April 2010

An Interim Report dated October 20, 2008, shows that X.X was taking the following courses and received these grades: Mathematics - B, Literature – B-, History – B, Science B. The teachers note that they are encouraging her to seek help as needed and to participate more. Her Language Training teacher noted that X.X

“is adjusting to the routine.” (Ex. P3-6). “Although she is easily distracted, she can improve her focus when she is prompted.” (Ex. P3-6). X.X was working on writing, including “composing expanded paragraphs, and reading.” (Id.). X.X had keyboarding introduced into her daily routine. (Id.).

For November 24, 2008, X.X's reported grades included: Math – A-; Literature – B (Ex. P3-12); History – B

(Ex.P3-13); and Science – B+. (Ex. P3-14). The math teacher reported that she worked with X.X on controlling her impulsivity in class, and X.X no longer calls out answers to questions intended for other students. The literature teacher described X.X's improved ability to express her understanding of the text. The science teacher described X.X as a classroom leader and encouraged seeking clarification of key concepts.

(Ex. P3-15). The student life report reflects that X.X actively was participating in campus life and had adjusted well to dormitory life. She was described as friendly.

A November 24, 2008, report from X.X's language training teacher states that X.X has settled into the X routine. Some portion of their session is spent on the mechanics of the upper case cursive handwriting and she is continuing to learn keyboarding, which the teacher observes “gives her confidence.” (Ex. P3-10). X.X is focusing on decoding for a portion of her language training class. “She applies learned phonics rules when reading.” (Ex. P3-10). Ms. O'Hara described how, within the Orton Gillingham method, the same sounds covered in reading are incorporated for X.X's spelling lessons with an individualized spelling pack to cover misspelled words. X.X's work on expanded paragraphs continued.

A November 24, 2008, Assistive Technology report indicates that X.X received instruction in the use of assistive technology to assist her in writing essays and vocabulary. She was taught to use a few programs that helped her to organize her thoughts, outline her essay, change it into paragraph form and edit it. She also has learned to create vocabulary study guides. In addition to attending the tutorial, she attended open lab hours to complete assignments using the technology. (Ex. P3-11).

The school issued Interim Reports on January 19, 2009. X.X received an A in Math, B in Literature, B- in

History and an A- in Science. The teachers comment on her homework, participation, and comprehension of the materials. (Ex. P3-7).

The teachers completed narrative reports for X.X dated February 23, 2009. X.X's Language Training teacher reported “improvement in her ability to organize her work” and “is paying attention to details.”(Ex. P3-17). X.X is noted to make good use of assistive technology and keyboarding as supports.

X.X has “progressed” to learning Latin roots and prefixes, long spelling, and suffixes. In study hall, X.X has an individualized long vowel spelling chart. In tutoring she works on this list as well. Ms. O'Hara detailed the progress in X.X's writing and reading comprehension skills. The teacher notes that X.X

“sometimes omits words that can change the meaning of a sentence...or word endings.” (Ex. P3-17). The assistive technology teacher recorded X.X's continued use of the technology and noted X.X's increasing independence using these tools. (Ex. P3-18). In math, X.X was reported as progressing through the curriculum, participating and completing her work. (Ex. P3-19). X.X's history teacher reported that X.X had a “fair term” in geography. She was timely with her assignments, but “missed key parts of the directions”. The teacher encouraged use of the relevant assistive technology which proved helpful earlier in the year. She was described as inattentive, distracted and somewhat disruptive. (Ex. P3-21). X.X's science teacher noted strong grades earned through a demonstration of comprehension of the subject matter, but also indicated that X.X was distracted and inattentive, requiring redirection and other strategies. (Ex. P3-22). X.X's student life report states: “While she is quiet, she has formed relationships with the other girls” (Ex. P3-23).

On X.X's Interim Report dated April 20, 2009, X.X earned an A- in math, B in Literature, A- in History and A- in Science. X.X's Literature teacher noted that in a memoir-like assignment, X.X wrote that it is often “hard to say a lot of details in a conversation”. The teacher also noted that X.X “has had some difficulty timing her comments”. The history teacher noted that X.X began to use the assistive technology to do her work and has improved. In science she maintained her good grades, but still is distracted and misses information. (Ex. P3-9).

X received end of year reports dated June 8, 2009. X.X's Language Training teacher wrote that X.X mostly completed her study hall work with accuracy. She was at times distracts by her computer, but could be redirected. Latin roots were reviewed and X.X was able to decipher meanings of words using them. She improved in her ability to read multisyllable words. Informal testing showed that she still had trouble spelling those words. “She wrote simple, compound and complex sentences, expanded cause and effect paragraphs and persuasion paragraphs.” (Ex. P3-25). Her writing mechanics need improvement and the teacher thought that the assistive technology would help in that regard. X.X “made significant gains while reading words in isolation” and “transferred those skills to reading words in context, as evidenced by her improvements in recent testing.” (Id.). Her scores on the Gates-MacGintie Reading Tests-Fourth

Edition reveal”significant gains” on the vocabulary portion of the test. (P3-25, 33).

X received an A- in math and her teacher noted her diligence, mostly timely work, and ability to seek clarification when needed. (Ex. P3-27). X.X earned a B in Literature with her teacher noting an increase in her relatedness during class discussions. X.X's writing improved “as she began to include more details and write at greater length in response to questions...” (Ex. P3-28). X.X earned a B in history. The teacher noted her improved research and writing skills. (Id.) X.X's Earth Science teacher noted her continued strong performance in all aspects of the class except participation because of her drawing in class and sometimes distracting behavior. She earned an A-. (Ex. P3-30). X.X's student life report notes that she “seems to have found contentment” in her dormitory and she began sharing her “great sense of humor.” (Ex. P3-32).

For the 2009-2010 school year, X.X's Interim Report dated October 19, 2010, includes a B in Math, B+ in

Literature, B+ in History and A- in Science. Her Math teacher notes an initial period of confusion with the material followed by “significant improvement”. Her teachers otherwise note a positive start to the year and encouragement for increased participation. During Language Training she reviewed some previous phonics and spelling as well as learned new vocabulary. She worked on both reading comprehension and writing, with the teacher encouraging her to slow down to complete assignments. (Ex.

P3-38).

X received reports on November 23, 2009. Her Language Training teacher reported that she had a “fair term.” (Ex. P3-62). X.X's tendency to rush through work decreased, but she “often avoided work that challenged her.” (Id.). Her reading of vowel teams improved throughout the term, but her spelling

“remained a challenge.” (Id.). X.X's work on phonics began to include morphology and she had a spell pack tailored to her work. Writing was a noted challenge, particularly organization of ideas. She benefited from assistive technology that helped her visualize the process. She worked on reading and was encouraged to seek help for decoding and meaning. (Id.). X.X received a C+ in Math with the teacher noting her struggles with more complex concepts and word problems. Although X.X did not take the opportunity to correct her assignments for a better grade, the teacher noted her improvement to work out problems on the board and explain the steps clearly to the class. She received an “uncharacteristic 72” on the term exam even thought she “appeared to prepare well as she was extremely focused in class.” (Ex.

P3-50). X.X earned an A in Literature with her teacher noting X.X's focus and effort to improve participation. (Id.). In History X.X earned an A-, with her teacher noting a “grasp of the material”, but a reluctance to participate. (Ex. P3-52). She earned an A- in Physical Science and her teacher noted a solid understanding, but a “difficulty communicating with the group as a whole” and a reticence to participate, particularly in pairs or small groups. (Ex. P3-53). The Student Life Report reflects that X.X actively connected with the elderly residents of a Health Center, practicing her communication skills. She is “a quiet girl in the dorm.” (Ex. P-54).

Interim Grade Reports dated January 18, 2010, showed X.X received a B in Math, A- in Literature, A- in

History, and an A- in Science. (Ex. P3-39). Her Math teacher noted that X.X is completing her work in half the time she previously needed and on occasion has provided help to other classmates. The History and Literature teachers both noted a marked increase in her active participation. (Id.).

Progress Reports were written February 22, 2010. In Language Training, X.X was “much more attentive to working”, “embraced new tasks and concepts with enthusiasm and initiative”, received top marks for evening study hall, and “incorporated the skills she learned in Assistive Technology last year into her writing tasks.” (Ex. P3-42). Her phonics work focused on assimilated prefixes and Latin roots. To improve her spelling skills she wrote complex and compound sentences, and reviewed a spelling pack.

The class had a focus on writing; X.X worked on improving her sentence structure, adding more descriptive detail to her sentences, and learning the parts of a sentence. (Id.). X.X's paragraph organization improved using the assistive technology she was given. X.X's reading comprehension skills improved as she was willing to reread sentences she did not initially understand. She improved her language skills by advocating for herself more. (Id.).

X earned a B+ in Math by submitting assignments on time and correcting them, actively participating in class including working out problems on the board, and learning the content. (Ex.P3-43). X.X received an A in Literature as an active participant who “revealed her personality to a greater extent”, by sharing “her sense of humor and liveliness with the class.” (Ex. P3-44). X.X received an A- in History. She showed a “solid understanding of the material and worked well in group activities”, as well as participated more actively “answering questions and making relevant contributions.” (Ex. P3-45). X.X earned an A- in Science with her teacher noting her continued “positive participation” and “well-organized and well-reported” experiments. The teacher also noted she sometimes had difficulty communicating with others in a group. (Ex. P3-46). The Student Life Report notes that X.X “has opened up and has been much more outgoing in the dorm. She now feels comfortable spending time in the common room with her dorm masters and peers. She smiles frequently and is quick to tell a joke...” (Ex. P3-48).

April 19, 2010 grades included: Math, A-; Literature, A; History, B+, and Science, A-.(Ex. P3-41). Her teachers noted continued participation, although her science teacher again noted her “struggle working cooperatively in a group.” (Ex. P3-41).

Dr. X's letter, dated February 5, 2010

In response to the Parents' request for an impartial hearing, Dr. X reminded the parents that at the June 12, 2008, 504 meeting, the team reviewed evaluations, reports, and X.X's current school performance, and concluded that she was ineligible. He added that Ms. X asked for time on how she wanted to proceed with a full evaluation, “i.e., either submit a request for an evaluation under IDEA or have private evaluations conducted and submit them for review by the SCE or the 504 team.” (Ex. J3-1).

Dr. X explained that since neither the parents or their attorney “submitted a written request for a meeting with the Committee on Special Education and the school district saw no reason to refer her” he was uncertain on what basis the parents could ask for a Due Process hearing. (Id.).

The District's Witnesses

Dr. X, Director of Special Education for the XXXX Union Free School District (XXX) for the last ten years, testified regarding his extensive credentials and experience. (Tr. 30-33). Dr. X has a doctorate in special education. (Tr. 116).Dr. X is not a licensed clinical psychologist, or licensed or certified as a school psychologist. (Tr. 115).

Dr. X testified that he is familiar with the student, X.X, through her parents' initial contact to introduce her to the XXX as a fifth grade student at XXX Elementary School and as a student who was brought before the Section 504 Committee. (Tr. 36, 43, 156). The parents gave Dr. X a copy of the Psychoeducational

Re-Evaluation Report conducted by the XXXSchool in XXX(“XX”) when they moved to the XXX and asked him “to advise them of the process to secure the accommodations that were being suggested in this document.” (Tr. 46-47; Exh. J2B). Consequently, Dr. X initiated the 504 process at XXX Elementary School. (Tr. 47).

In the XXXX Middle School (“XMS”), Section 504 determinations are made by a building level 504 team. Dr. X testified that his responsibility is to insure that the district has a procedure that allows parents or teachers to request 504 plans at the building level. He has overall supervision of the 504 teams at the building levels and when there is an appeal of a building level decision, it comes to his desk and he acts on the appeal. (Tr. 37).

Dr. X testified that the process for a parent to make a referral to the Committee on Special Education (“CSE”) “...is a written referral....[a]nd it need not be on a specific form. I have received referrals and accept referral by e-mail or by letter through the regular postal service. Some parents will come into my office and, after talking to me, will take a piece of paper and just write “I wish to refer my child for special education services” and sign it and we begin the process with that.” (Tr. 42, 145-146).

At the October 30, 2006, XXX 504 meeting, Dr. X understood the XX report to inform the 504 committee that X.X was functioning within average to above average levels of performance, that she would not qualify for IDEA services, but that she might require continued accommodations. (Tr. 48-49). He later testified that the report was “equivocal on whether or not she required any accommodations based upon how she performed...” (Tr. 239). Dr. X was unable to testify whether the documents listed as the basis for the 504 recommendation were actually present at the meeting. (Tr. 226-227; Ex. J6; Ex.J2B7).

Regarding the outcome of the meeting, Dr. X testified: “Considering the recommendation from the XXX School and the fact that she was transitioning into a new school, new requirements, as a means of transitional services, the 504 Committee granted accommodations.” (Tr. 49). Dr. X testified that in addition to the accommodations the team recommended that X.X should be provided “learning resource center service” (“LXX”), a service that is provided to general education students as an intervention strategy. (Tr. 51). “It's a mechanism...a short-term intervention that can be applied to help a student develop compensatory strategies needed to perform effectively in the regular classroom.” (Id.). According to Dr. X, LX was noted in the comments section of the report, not “pursuant this [sic] plan, per se.” (Id.).

During fifth grade X.X attended the LX three times per week.

Dr. X testified that the major life activity identified by the 504 committee that was the basis of the plan was “the completion of work in a typical amount of time.” (Tr. 51, 53; Ex. J6). The parents signed their consent to initiate the 504 plan. (Exh. J8).

For sixth grade, X.X transitioned into the XXXX Middle School where the XMS 504 team had the responsibility of reviewing the previous year's plan and did so on October 30, 2007, a year after the initial plan was devised. (Tr. 55). The meeting was scheduled at the end of October in order to provide the opportunity for X.X's teachers to become familiar with her. (Tr. 229). None of X.X's fifth grade teachers were present. (Tr. 229; Ex. J2C). The Committee Meeting Information form notes that the team relied on a teacher report dated October 30, 2007 and a Psychoeducational report from June 14, 2006. (Ex. J2C). It was the report prepared by the , also used at the 504 meeting the previous year.

(Ex. J2C; Tr. 230). Dr. X testified that the fifth grade ELA scores also were available, but they are not referenced on the Information form nor was he present to say whether they were provided to the meeting participants. (Tr. 230-231). The outcome of the Section 504 Committee was that X.X “should be exited from the 504 process.” (Id.).

Dr. X learned that the parents were concerned about the conclusion of the October 30, 2007, 504 meeting from the recommendation which is sent to him, and from the parents' request for him to review the decision. (Tr. 241). Dr. X did not take the parents' letter as a referral to the committee. (Tr. 242). He testified that “[b]ased upon the information that I had before me as well as the information that I collected through conversations, I supported the recommendation of the school....It did not appear that [X.X]

presented with a disability or disabilities which adversely...in a significant way affected her performance in school.” (Tr. 57).

From the time the parents wrote a letter on November 19, 2007, until Dr. X provided a response in his letter of February 11, 2008, Dr. X recalled receiving numerous telephone calls from both parents all referencing the objection to the recommendation that X.X be exited. (Tr. 61). The parents informed him that they employed tutors and expressed their concerns “regarding her overall performance, emotionally, her overall functioning in the school academically.” (Tr. 62). Additionally, X.X was coming home anxious about the demands of school. She needed extended time or modifications and her writing was

7 In the course of the hearing the District became aware that an earlier version of the XX psycho-educational evaluation, dated May 14, 2006, exists (Ex. D11). The report from the October 30, 2007, 504 meeting states that it relied upon the June 14, 2006, version. The differences between the two reports are highlighted in the “Selected Documents” portion of this decision.

poor. (Tr. 367-368). In Dr. X's view, there was no evidence that she was suffering emotionally in the classroom. (Tr. 379).

Dr. X testified about the e-mail sent to him by X.X's mother on January 5, 2008. (Ex. P5). Dr. X stated that since the parents never had a CSE meeting he believed that they were referring to a 504 meeting. (Tr.

272). Based on numerous conversations with the parents his understanding was that their request was for information regarding the 504 plan. “It had nothing to do with a referral to the Committee on Special Education.” (Tr. 273). X.X was not receiving resource room services at the time. (Tr. 528).

Dr. X stated that he followed up his conversations with the parents with calls to the school to learn whether the teachers were seeing what was reported by the parents (Tr. 63, 248-249). He had access to

X.X's report cards, but did not look at any examples of her school work or tests (Tr. 247, 364). Dr. X stated that he did not perform any standardized nationally normed testing for X.X given what X.X's report card reflected and the teachers reported. (Tr. 249).

Dr. X acknowledged that X.X had been diagnosed with and . He testified that at the time he had written the February 11, 2008 letter, the district had performed both the ERB test and the ELA.

X.X's scores were “within the average range, indicating that even if she did have dyslexia, it was not significantly impairing her ability to read.” (Tr. 252-253). In his view, then, the district “did perform testing that disputes the evidence of a significant impact or severe impact or any impact of dyslexia, for that matter.” (Tr. 253-254). Whether X.X had dyslexia or in Dr. X's view, “it was not significantly interfering with her ability to meet the requirements of the district.”^[8] (Tr. 254).

Dr. X received a letter dated May 16, 2008, from X. X. , the parents' attorney, requesting a Section 504 meeting, and forwarding to him Dr. X's report. (Ex. 2G; Tr. 102, 446). The school's 504 committee met on June 12, 2008. (Tr. 405-407).^[9]

According to Dr. X, the committee reviewed Dr. X's report at the meeting. (Tr. 92-93, 461-462). Dr. X explained that the committee looked at the way in which X.X functioned during the evaluation and compared it to how she functioned in school, “and in many respects the findings of Dr. X reflect the disagreement that both the parents...and school had....” (Tr. 66-67). Dr. X stated: “Dr. X referred to the differences with regard to the cognitive score in her report, and comments that the structure of the classroom helps to, and she used the word “mask” X.X's difficulties, and to that extent Dr. X said the class teachers did not see the problems that the parent saw at the time. Dr. X pointed to the results of the Connors Rating Scale in Dr. X's report to provide an example of how the teachers saw X.X's academics to be “within normal limits” but the parents had a different perspective (Tr. 68-70).

Dr. X testified that “the group who reviewed this report went through these tests and looked at the scores and her performance on this test, and again found that she is a student with certainly varied ability in performance, but overall functioning within the average range academically.” (Tr. 73-75). “And looking through the report when it was received, the other things that impressed us, as I recall, were her scores, her performance on the test, and her performance in the overall was certainly within the average range in each of the areas.” (Tr. 71). Dr. X stated that language difficulties had been discussed in Dr. X's report as well as “prior reports”, specifically that X.X has difficulty with “rapid naming” or naming of categories, yet in the Boston Naming Test, a test of language functioning, she was at the 77th percentile which is high average (Tr. 81-82; Exh. 2F-24). X.X's comprehension when paragraphs were read to her was low average. On the Test of Language Competence-Expanded Edition (“TLC-E”) the committee “saw variability”, as did the evaluator, with score fluctuation between borderline and average. (Tr. 82; Exh. J2F-

25). Dr. X stated that the committee found that this evaluation reflected areas of strength and difficulty, which “may or may not be related to attentional issues...” (Tr. 82). He explained that the committee saw some of these scores as expected for a student identified with Attention Deficit Disorder (Tr. 82-83).

Dr. X took issue with Dr. X's characterization of some of X.X's scores on the Wechsler Intelligence Scale for Children, Fourth Edition, as being “low average”. Dr. X included scores which she characterized as low average, but which according to the test manual were, in fact, at the low end of average. Dr. X testified that the testing protocol indicates that scores ranging from 8 through 12 are considered average.

“Low average” is seven or below. (Tr. 74). Dr. X, at p. 21, stated that a scaled score of eight is in the low average range, but the manual says it is within the average range for the particular test. X.X's score for perceptual reasoning, picture completion, had a scaled score of eight with a 25th percentile, and the qualitative description is “low average”. Similarly, in the area of digit span, a working memory subtest score, resulted in a scaled score of 8, 25th percentile, and a qualitative description of “low average”. (Tr.

73).

XX’s scores for the tests that measure writing skills included those for spelling (the lowest end of average), writing fluency (high average) and contrived writing (lowest end of average). On all of the tests in this area, except Logical sentences, X.X's scores were in the average range. On the subtest for

Spontaneous writing X.X's scores fluctuated and reflected “some more difficulty in the area of writing.”

(Tr. 78). Dr. X explained that a student with these fluctuations would have difficulty on writing assignments depending on the type of writing involved. “The spontaneous writing was much more difficult for her. Writing from a prompt or about a particular subject was easier for her.” (Tr. 79).

He testified that the committee went through Dr. X's recommendations as well (Tr. 93). Dr. X stated :

“Many, if not all of the recommendations that were identified are available to students in the school without accommodations.” (Tr. 93). These recommendations “were or could have been met through what's called academic support services” that were available to all students at the middle school with or without 504 plans if a teacher thought a child required those supports. Id. He disagreed with Dr. X's statement that X.X “requires extended time on all timed tasks, including standardized and in house tests, as well as projects and/or assignments” because there “was no evidence of it in actuality.” (Tr. 456).

In conclusion, “the report itself supported many of the feelings of the teachers, recognized the differences between what the parent saw and what the staff saw, but ultimately the group did not feel that accommodations were required.” (Tr. 94).

There is no mention of Dr. X's report in the document memorializing the meeting. (Ex. J2K). Dr. X explained that the meeting notes are “not verbatim minutes”. (Tr. 400). Dr. X later testified that he did not remember which documents were present at the June 12, 2008, 504 meeting. (Tr. 450). Dr. X did not recall ever disseminating Dr. X's report to the 504 team either before or after the meeting. (Tr. 535).

Dr.. X was asked to state whether he agreed or disagreed with a number of statements included in Dr. X's report. Dr. X disagreed with Dr. X's statement that X.X “continues to exhibit considerable difficulties in the areas of attention/executive functioning, as well as language functioning” in school. (Tr. 452-453; Ex

J2F-17) and that “[t]hese difficulties are having a significant impact on her academic achievement.” Id.

He disagreed because X.X was meeting state and local requirements as viewed by her teachers. (Tr. 453-

454). He did not think that “these difficulties appear to be having an increased impact on her social/emotional functioning” because he does not believe “that she evidenced significant social emotional difficulties in school.” (Tr. 454). Dr. X understood that X.X “had some difficulty making friends.” (Tr.

451). He does not believe that she was being bullied, although he had no reason to dispute that the parents believed she was. (Tr. 451-452).

Dr. X also disagreed with Dr. X's conclusion that X.X continues to require considerable support because, at that time, she was not receiving support in school. Id. Dr. X did not believe that X.X had attentional and executive issues that were severe or significant and interfered with performance (Tr. 458-459, 518)

because the teachers who completed the Connors rating scale administered by Dr. X, yielded results that showed X.X's attention skills to be within normal limits. (Tr. 521; Ex. J2F). Dr. X disagreed with the statements that X.X needed supplemental services for written expression, support to address weaknesses in decoding skills, or supplemental services to address cognitive organizational issues because there was no evidence to suggest in school that any of these areas interfered with her performance in meeting state and local requirements. (Tr. 459-461).

Dr. X wrote in her report: “X.'s writing is poor.” (Ex. J2F-18). Dr. X saw evidence that X.X needed some help in writing, and some evidence that she did not. He was left “with some question” after reading Dr.

X's statement. (Tr. 457-458). To resolve the question, Dr. X looked at the grade she received, at the test results, and considered what the curriculum covers. He thought that the school has services available to its general population that would probably meet her needs. Ultimately, he “did not feel that there was outstanding evidence to indicate that she required special education or other type of service to address poor writing.” (Tr. 458). From Dr. X's perspective, Dr. X's report “did not support the need for accommodations under 504 and certainly did not, in any way, indicate a need for special education.” (Tr.

463).

Dr. X testified that the 504 committee all reviewed Dr. X's evaluation at the June 12, 2008, meeting. X

Lorie, the speech pathologist for the district, was asked to provide interpretation of the evaluation at the meeting (Tr. 99). At the 504 meeting, Dr. X stated that “[t]here was nothing significant” in Dr. X's evaluation (Tr. 99-100). He disagreed with Dr. X's statement that X.X's “speech and language dysfunction affects her phonemic levels of language” or her “syntactic levels of language.” (Tr. 470-471). According to Dr. X, Dr. X's testing and the XXXSchool of XXXreports do not support these statements. (Tr. 471).

Dr. X does not believe that the Detroit Test of Learning Aptitude is a test of language functioning so he does not think that Dr. X can make the statement that X.X's language dysfunction could impact on her emotional well-being. Nor does he believe that X.X “evidenced a language dysfunction.” (Tr. 472). He did not believe that X.X needed speech and language instruction because there was no evidence that a language dysfunction existed or was negatively impacting her performance in school to the extent that she could not meet the stated requirements. (Tr. 473).

Dr. X testified that the 504 committee reviewed Dr. X's letter. (Tr. 100-101, 482; Ex. J2I). Dr. X recalled that the report “indicated ocular motor difficulties” and “potential problems the child may have in school”.

He recalled “the committee not finding those problems to exist.” (Tr. 101).

Dr. X testified that the 504 Committee ultimately determined that X.X was not eligible for accommodations because “[h]er performance in school during the course of that year suggested that she was meeting the requirements of the curriculum and was doing it at a satisfactory level, and there was no indication of severe deficits or difficulties that warrant accommodations.” (Tr. 102-103). “In considering the student's performance, we looked at the ELA scores and they were all passing. They were in 3's.” (Tr.

103). Dr. X's view was that “even though there may be difficulties, these difficulties fell within general difficulties that we see in students in general. They were difficulties that could be addressed through in-class teacher modifications that teachers normally do as a course of business. They did not warrant accommodations as required under a 504 plan.” (Tr. 103).

At the end of the meeting X X said that “she would like to see a full evaluation by the committee and would refer the student to the CSE for evaluation”. (Tr. 104). In response to asking Ms. X what specific evaluations she would like the District to perform, “she said essentially I'll get back to you with the request.” (Id.). Subsequently, Ms. X never contacted Dr. X. (Id.).

Dr. X spoke to Dr. X after the June 12, 2008, 504 meeting and later received a letter from her, dated July 24, 2008. Dr. X wrote to address a comment in the notes of the 504 meeting related to her use of the

Detroit Test of Learning Abilities and asked that a portion of the meeting notes be deleted because they were inaccurate. (Ex. J2L; Tr. 104-105, 474-477). The sentences that Dr. X asked to be deleted were written by Dr. X and reflected only Mrs. Lorie's opinion so Dr. X did not delete them. (Tr. 477, 522). Dr.

X also received a letter from XXXX and X Family Counseling Service, dated July 14, 2008. (Ex. J2M; Tr.

106). He did not seek to schedule a CSE meeting or a 504 meeting after receiving the letter because there was no request in the letter nor was there evidence that the child was exhibiting difficulties that would impair her ability to learn or function in school. (Tr. 485-486, 493).

Dr. X met with the parents on August 8, 2008 to discuss his review of the additional reports they had sent to him for his review and to consider providing X.X with 504 accommodations. (Tr. 106, 133).

Dr.X testified that he had a conversation with the parents around September 6-8, 2008, when they informed him that X.X would not be in school for the first few days because they were not sure whether she would return to the XXXX Middle School. (Tr. 134-135, 498). The parents wanted assurance that X.X would receive accommodations and supports. (Tr. 498). He recalled telling the parents again about building level supports that X.X could be provided. He did not recall telling the parents that he would need a writing if they were taking their child out of school. (Tr. 136).

Dr. X testified that he was notified by the Middle School that X.X “actually left or never returned to the middle school in September 2008.” (Tr. 108). He recalled that the father informed him that the parents were “considering” sending X.X to X. He never was notified by the parents, in writing. (Tr. 109). Dr. X did not give the parents any information regarding “district of location formalities” nor did he refer them to the XXX website where they could find the information. (Tr. 524-525).

At the father's request for a written statement “so that when [X.X] came back to the district, whenever that might be, she would be provided accommodation as specified in prior reports”, Dr. X wrote a letter dated October 20, 2008, in which he explained that should X.X return to the district her needs would have to be assessed at that time. (Tr. 107-108). He stated that X.X might need additional support for writing, but thought that the Teacher Academic Support (“TAS”) program, an intervention program available to all students, would have been sufficient support. (Tr. 502).

Dr. X testified that attached to the parents' Due Process Request, received by the District on February 5, 2010, he received a copy of Dr. X X's Psychological Evaluation of X.X, dated November and December

2009. (Tr. 110-111, 505; Ex. 2P). Dr. X reviewed the evaluation. He stated: “In some respects the evaluation shows a decline in X.'s performance, which would be concerning and may be persuasive in – necessitating either accommodation or even special education services. So we would be concerned about the reliability of this document if, in fact, it reflects her performance on a regular basis or was this performance just a very quick snapshot and does not refer to her overall abilities.” (Tr. 112). Dr. X further testified that the report indicates a change from previous psychological testing and would require investigation into the reasons in order to determine whether X.X could be successful and make progress in the XXXX schools without accommodation. (Tr. 112-113).

Dr. X was asked to comment on whether he took issue with any part of Dr. X's findings or recommendations. He explained that Dr. X chose to use an Ability Achievement Discrepancy Analysis chart to develop her diagnoses of X.X. He explained that a discrepancy model is a way of using a student's performance on an IQ test (the Wechsler Intelligence Scale) to predict the student's score on achievement testing( the Wechsler Individual Achievement Test). (Tr. 121). Any discrepancy between the student's expected performance and the student's actual performance, is analyzed and used to develop diagnoses for the student. (Id.).

Dr. X performed a discrepancy analysis using X.X's score on the Perceptual Reasoning Index (“PRI”) on the WISC-IV (SS 112) to predict her “expected” scores on the WIAT-II, and to analyze any discrepancies.

(Ex. J-2P; Tr. 122-123). Dr. X testified that Dr. X's use of the PRI score was misplaced, as it is the score least correlated with performance in school. (Tr. 123, 128). Dr. X's use of that score, as opposed to X.X's composite IQ score (SS 99), created a larger discrepancy between expected performance and actual performance on the WIAT II, thereby exaggerating any differences that might have occurred. (Tr. 123-

124). Dr. X reviewed WISC-IV testing protocols (Ex. P4) and performed his own discrepancy analysis using X.X's composite IQ score to determine expected scores on the WIAT II. (Tr. 512-513; Ex. P4). The expected scores Dr. X developed using the composite IQ were all different than the expected scores developed by Dr. X and would have resulted in a different discrepancy analysis (see Tr. 263-269). Dr. X questioned the use of a discrepancy model in general since, in his opinion, an intelligence test such as the WISC IV cannot measure and predict, with a high degree of accuracy, a student’s ability for academic achievement. (Tr. 126). He also testified that based on the many psychological evaluations he reviews and training he has received, using a discrepancy analysis in this way is not general practice among clinical psychologists. (Tr. 126-127).

Dr. X did not review Dr. X's evaluation with any other person or attempt to speak to her about it. (Tr. 115-

116). Dr. X testified that he did not refer X.X to the CSE after receiving Dr. X's report because there was no request for referral to the CSE nor was X.X a student in the District. (Tr. 517). Dr. X testified that from all of the documents regarding X.X that he has reviewed and as a member of the 504 Committee, there is no indication that X.X needed a school like X. (Tr. 113).

The school district did not conduct any standardized testing on X.X during the 2006-2007 or 2007-2008 school years to determine her strengths and weaknesses other than the required state testing, including the English Language Arts (“ELA”) evaluation. (Tr. 165-166). These tests assess whether the student has obtained and demonstrated proficiency is certain skill areas. (Tr. 168). Dr. X testified that a state-based test can be used to analyze whether or not a child has a disability by looking at the different domains tested and seeing whether there are particular areas that the student did not master. (Tr. 171-172). These tests should not be used as the sole criteria for determining whether a child has a disability. (Tr. 172).

Ms. X X, assistant principal at XXXX Middle School, testified that for the 2007-2008 school year there were approximately 1000 students at the middle school, grades six through eight. (Tr. 56). Upon coming to the middle school, each sixth grader is assigned to one of four “houses” with a “house counselor.” (Tr.

566). There are about 250 to 300 students in each house, with about 85 to 100 per grade. (Tr. 566-567).

The students have their core academic classes in that house and have a team of teachers for English, math, science and social studies. There is a learning resource center teacher in each house who is considered to be part of the team. The house counselor meets with the team twice a week. (Tr. 569-570). The assistant principals usually attend the meetings on a monthly or bi-monthly basis. (Tr. 570). The meeting time is used to review students and for planning. A particular student may be discussed due to concerns expressed by a teacher or the house counselor.

Ms. X described the academic support offered by the middle school. Individual teachers offer after school extra help to all students and the students are encouraged to stay. The school also offers Team Academic Support (“TAS”), a “support for all students who are struggling academically.” (Tr. 568). Ms. X explained that the team usually makes a recommendation for a student to go for TAS. (Id.). For students who require support from the CSE the school has a wide range of programs for students who are classified as needing special education. (Tr. 569).

Ms. X testified that she chairs the XMS Section 504 committee meetings, both initial requests and subsequent reviews, with the psychologist of the student's house. (Tr. 571). Students come to the attention of the 504 committee if they transition from an elementary school with a 504 plan, if a parent makes a request or if the team requests a meeting. (Tr. 571). The range of supports offered through a 504 plan include accommodations for the classroom or for testing, a related service, or, rarely, learning resource center. (Tr. 572).

Ms. X testified that she is familiar with X.X because she was a sixth grader in XXXX where Ms. X tries to get to know the students because she also supervises disciplinary issues there. (Tr. 573). Prior to X.X coming to the XMS, Ms. X met with the XXX Elementary School psychologist, X X, to review the students who have special education needs, 504 plans, or other areas of concern. (Tr. 575-576, 649). Ms.

X informed Ms. X that X.X had moved to XXXX from XXXin the fifth grade and that her mother insisted that X.X receive a 504 plan. (Tr. 576).

Ms. X chaired a 504 meeting for X.X on October 30, 2007, approximately seven weeks into X.X's sixth grade school year. (Tr. 578, 650; Exh. J2C). She did not recall having any documents with her at the meeting. (Tr. 579, 620). She testified that the ELA and math scores from fifth grade were discussed at the meeting. (Tr. 579, 632). She recalled: “We relied heavily on teachers' feedback about tests.”.... “Each teacher reviewed how she had been performing in their class. They talk about if there are any kind of, in this case, attentional issues. That was part of the disability statement was attentional. So we talked about whether she could attend during lessons.” (Tr. 584). She further explained that the team looked at whether or not there was a significant impact upon a life function, in this case, learning. The team did not see a significant impact. She had been successful on assessments and “had not required extra time. Teachers described her as attentive. Teachers described her as participating. And she had not utilized any of the accommodations she had on the...plan that she came into the middle school with.” (Tr. 585-586). Ms. X did not recall consideration of any testing other than the state assessments at the meeting. (Tr. 632). The parents spoke about concerns they had at home. X.X's reading comprehension and ability to organize writing were concerns. (Tr. 585). Ms. X recalled that the parents confirmed the diagnosis of either ADD or and that X.X currently was taking medication. (Tr. 650).

Ms. X testified that she kept notes at the meeting and then wrote up the committee information document.

She explained the fact that the state test results do not appear on the document as an “oversight”. (Ex. D1; Tr. 617). She tries “to take the gist of how she had been performing.” (Tr. 617). Ms. X testified that she had a copy of X.X's previous 504 plan as a working draft.^[10] (Tr. 657, 662). She was not sure who, if anyone else, at the meeting had it. (Tr. 667). The teachers were aware of the plan “from the very beginning of the school year.” (Tr. 663). “The house counselor will review that with them and review what the accommodations are.” (Tr. 664). Ms. X described this as the school's practice and was “definite it happened for this student”. (Tr. 665).

Subsequent to the October 31, 2007, 504 meeting, Ms. X spoke with X.X's house counselor, X X, to monitor X.X's status throughout the year and, specifically, to get an update for Dr. X in response to the parents' appeal. (Tr. 588). The discussions were consistent with what was discussed at the October 2007 meeting. “Her grades still were in the range of grades we want a sixth grader to be in. They hadn't noticed any decline in her performance....” (Tr. 588-589). Teachers indicated that she did not need extra time on tests. (Id.). In sixth grade, X.X took the math state assessment and received a 3, scoring 672. (Tr.

589; Exh. D4). X.X received a level 3 on her state English Language Arts assessment, with a specific score of 670. A level 3 score indicates that the child is meeting the learning standards. (Ex. D4, D5).

X.X did not receive any accommodations for either of the state assessments. (Tr. 590-591, 630). The ELA requires multiple choice answers, short and longer written responses based on reading passages and listening comprehension. (Tr. 591-592). Ms. X testified that she also reviewed X.X's report card during the 2007-2008 school year to make sure that she still was “performing successfully”. (Tr. 592). Her core subjects were in the A,B range. (Tr. 593-594; D3). Ms. X testified that teachers determine specific grades in their own way, but generally based on testing projects, class work, participation and homework completion. (Tr. 594). Ms. X testified that she is not aware if X.X attended extra help after school or if she was part of the TAS program. (Tr. 647-648, 657).

At the end of the school year Ms. X spoke with Mr X about whether X.X would be taking a foreign language or would be recommended for TAS support because the parents wanted X.X to have the academic support, but the sixth grade team “believed strongly that she did not require the extra support and should take a language class.” (Tr. 596).

Ms. X testified that she spoke to the parents twice after the October 504 meeting. She spoke to the mother individually immediately after the meeting. The parent was “very concerned” about there not being testing accommodations in place. She spoke about X.X previously struggling and was concerned that there would not be accommodations to support her. (Tr. 636). Ms. X also recalled contacting the parents to let them know of an incident she described as X.X being the victim of an insulting comment made by another student. (Tr. 613). The parents never made a CSE referral to Ms. X or discussed the need for an IEP with her. (Id.).

Ms. X X testified that she was X.X's sixth grade homeroom and English teacher during the 2007-2008 school year. (Tr. 699). Ms. X X was on the 504 committee on October 30, 2007, but had no independent recollection of the meeting. (Tr. 700). Ms. X X testified that it is “very hard for me to assess” how a student is functioning academically at the beginning of the school year until about November. X.X “came very eager to please, happy to be there. I don't recall. There were no red flags in the beginning of the year.” (Tr. 701). She testified that she could make an assessment on a student in October as to whether or not they may need accommodations based on tracking late or missed work, notes on work done incorrectly, or if they come for after school help. (Tr. 701, 726). She could assess her writing based on the class work on the “perfect paragraph.” (Tr. 729). At that time, X.X “was meeting all expectations....” (Tr.

701, 728). Ms. X X did not recall X.X's writing from the first two months of school. (Tr. 729). She could not comment on her reading comprehension because they had not yet read their first novel. Only one or two vocabulary tests had been given before the October 30, 2007, 504 meeting. (Tr. 726-727). As of an October 16, 2007, e-mail she wrote to the mother: X.X still was “doing getting to know you activities and organizational strategies.” (Ex. P12). The class had not yet done literary analysis. (Tr. 736). She would not agree with the parent's e-mail comment of that date that X.X “seems totally disorganize [sic]” because “80 percent of the kids were totally disorganized with their writing process in sixth grade.” (Tr. 736; Exh.

P12). Ms. X X could not recall if X.X was in that 80 percent. (Tr. 736). Ms. X X stated: “[W]ithin terms of accommodations, you know, every kid, no matter whether they have a 504 or not, can have extra time in sixth grade. Any kid could have preferential seating.” (Tr. 728). Ms X X added that if kids did not finish their test in the allotted time they allowed them to stay and finish or come back at lunch or reading and finish. “We give those accommodations naturally because we want them to succeed.” (Tr. 728, 761-

763). She characterized it as a philosophy shared by the team of teachers and communicated to the students' parents. (Tr. 768-769). She did not recall X.X ever needing extended time or clarification. (Tr.

711, 758, 765, 766).

Throughout the year, Ms. X X kept a record of how X.X performed on tests and quizzes in a written grade book and an online grade book. (Tr. 702). Ms. X X explained her grading as “weighted”. “60 percent of the grade comes from anything related to reading and writing, so poetry, essays, literary analysis, creative writing. 15 percent accounts for vocabulary, 20 for grammar and 5 percent effort, participation.” (Tr. 716-

717). X.X “hovered between an 88 and 91.” (Tr. 717). Ms. X X's grading shows that X.X received the following grades: For the first quarter, on three vocabulary quizzes, 73%, 93%, 90%; for the second quarter, on two vocabulary quizzes, 73%, 77% and on a noun quiz, 91%; for the third quarter, on vocabulary quizzes, 73%, 80%, 85%, on a poetry final test, 98% and on the “XXX” final test consisting of multiple choice and an in-class theme essay, 81%; and for the fourth quarter, X/X quiz, 90% and mythology final, 96%. (Ex. D2-5).

Looking at the entire 2007-2008 school year, Ms. X X did not think that X.X had any issues with reading comprehension. (Tr. 757). “She struggled with vocabulary.” (Tr. 712). X.X “did not perform well on vocab quizzes, those kind of words in isolation, and you have to put into sentences.....She was usually around the C level. I remember she really struggled with homophones. Her spelling was on the weak side....” (Tr.

712). One strength was that X.X was very proactive in seeking help. (Id.). She was very good with revising her written work. She “was a mature learner”, ...”taking responsibility for her learning.” (Id.).

The goals for Ms. X X's sixth grade English class were “[p]erfect paragraphs, meaning a good topic sentence, developing details, conclusions, transitions,...avoiding repetitive sentence beginnings and consistent verb tense.” (Tr. 713). X.X was “good” at developing those skills. (Id.).

The ELA taken in the sixth grade is administered over three days. One day is strictly reading comprehension when the students read a few passages and answer multiple choice questions. The second day the students listen to a teacher reading a passage, the students answer three or four answer questions, and then they write an extended essay. The last day the students read two stories, answer some short answer questions and write another extended essay. (Tr. 714-715). The multiple choice answers are graded using Scantron and are sent to the State. The XXXX teachers grade the tests, but Ms. X X grades students other than her own. (Tr. 715). She had no idea how X.X performed on the ELA. (Id.).

Ms. X X testified about a written assignment completed on June 4, 2008, titled “Sixth Grade Theme

Essay” and referred to as “the benchmark essay.” (Ex. D6). It was an eighty minute timed test. (Tr. 748).

The assignment is given over two consecutive periods during which the students read a short story and then write in response to a question. For this test, the students read “The Lie”, a short story, consisting of fifteen pages, by Kurt Vonnegut. (Tr. 749). Ms. X X stated that X.X understood the underlying concept of the short story that was the basis for the essay question, used transitions, included a quote and provided textual evidence. “It was very well done.” (Tr. 710, 739). She received an A- based on how X.X wrote the benchmark. (Ex. D6; Tr. 739). X.X did not receive any help with the assignment nor did she receive any accommodations. She finished within time. On the actual analysis level, X.X did “great”. She followed directions and included all parts of the assignment. X.X's performance compared to other sixth graders in her class “was definitely above average.” (Tr. 711). Ms. X X stated that she was not concerned with spelling or capitalization on this type of essay because it was not typed and had not gone through the writing process. (Tr. 749-750). “We have far worse.” (Tr. 750).

Ms. X X testified about X.X's performance on two end of year speeches, describing her as “terrific.” (Tr.

740). She gave a two minute speech on a pet peeve, how people cut in line. “And she got up there and not only wrote a good speech that she had memorized, that she connected with the audience, she used hand gestures, eye contact, and the class applauded for her.” (Tr. 740). Ms. X X testified that the parent had asked her to provide a copy of the video of X.X's speech. Ms. X X did not think that she had taped X.X and did not go through the tapes to provide one to the parents. (Tr. 741). Ms. X X does not believe that X.X has any expressive language issues. (Tr. 757).

Ms. X X described X.X as a student who was always willing to revise for a better grade. (Id.). X.X participated in discussions when the class read aloud. She worked well in groups. “She just seemed happy to be there.” (Tr. 718). X.X did not utilize extended time that was informally provided to students who needed it. “She seemed to finish all the time within the allotted time.” (Tr. 758). There was no indication from her performance in Ms. X X's sixth grade English class that she needed to be referred to the CSE or that she would need accommodations through a 504 plan.

Ms. X X testified a number of times that X.X was on her radar because of correspondence from X.X's mother. X.X was brought up on occasion at team meetings “usually based on a phone call or conversation from home or Mr X wanting to follow up.” (Tr. 760-761).

Mr. X X testified that X.X was a student in his social studies class during the 2007-2008 school year. (Tr.

783). He recalled the October 30, 2007, meeting. The teachers gave a “thumbnail” sketch of X.X, noting that they were just getting to know the students at that time. (Tr. 791). At the beginning of the 2007-2008 school year he found X.X to be “a hard working student. She didn't stand out as being outstanding, nor did she stand out as being below average. To me she was a typical sixth grade student.” (Tr. 791-792).

He remembered telling the committee that at that time, X.X was “performing above average” in his social studies class. (Tr. 784). He assessed her performance through methods including written homework assignments and quizzes. (Id.). Mr. X X testified that X.X did not require extra time for tests or quizzes.

He further testified: “In my class, the standard policy is this, when I distribute a test or quiz, the students have as much time as they need to complete it.” (Tr. 793, 822). Mr. X X testified: “We would never take a paper away from a sixth grader.” (Tr. 824). All students could use a lunch or reading period to finish an in class essay or test. (Tr. 823-824). If a student repeatedly needed more time the student's performance would be discussed at the team meeting to learn if the issues crossed all subject areas and the team would try to determine how to best support the student. X.X never was discussed in this manner. (Tr. 827-828).

Her name might have come up at a team meeting for XXXX after a parent communication, but not about her academic functioning. (Tr. 792).

On projects throughout the year, X.X scored an 88 on a geography paper, an 84 on a project pertaining to ancient man, a 97 on a project on pyramids and a 92 on an ancient Greece project. (Ex. D2-1,2,3,4; Tr.

794-795). Mr. X X could not differentiate among the graded assignments on X.X's social studies progress reports which were done in class and which were taken home. (Tr. 830; D2). In class, Mr. X X stated, she was “very organized”. On essays, Mr. X X grades students on “content only”, not grammar and spelling.

(Tr. 809). X.X's report card grades in social studies over the four quarters were B plus, B plus, A and A.

(Ex. D3; Tr. 809). She received a B plus for the entire year's grade. (Id.). Mr. X X arrived at his grade by weighting tests 25%, quizzes 15%, essay term papers 20%, small projects 15%. He stated that she had “a good year”. She participated in class and group activities. She was a good member of the group. She did not stand out. (Tr. 810).There were no indications in his class that X.X needed any accommodations or was in need of any supports pursuant to the special education laws of NY. (Tr. 810-811).

Ms. X X testified that she was X.X's sixth grade science teacher in the 2007-2008 school year. She was asked to participate in the Section 504 meeting, October 30, 2007, but she had no recollection of the meeting. (Tr. 834-835, 857). She described X.X at the beginning of the school year, like “most sixth graders” as needing “a little bit of time to get their feet under them.” (Tr. 835). As with the rest of the class, she checked over homework assignments and went over the concepts X.X did not understand. Ms.

X X did not recall if X.X ever stayed for after school help, but stated that X.X did not “stand out as someone that needed extra attention.” (Tr. 835). Ms. X X had the following to report on at the October 30, 2007, 504 meeting: ungraded assignments, one graded quiz (93.5%) and one exam, a lab practical

(100%). (Tr. 857-862; Ex. P17-2). Ms. X X did not recall if X.X required additional time to take exams in class. Ms. X X provided extra time to every student who needed it. (Tr. 838). If a student needed extra time on a regular basis, Ms. X X stated that she would have brought it up at the team meeting to see if it was a pervasive problem. (Tr. 838). Ms. X X did not recall ever bring up X.X's name in this regard. (Tr.

839).

Ms. X X remembered X.X as being “very engaged” in science class. (Tr. 839, 842). She participated in class discussions. Ms. X X derived a student's letter grade for each term based on their performance on exams, homework and lab projects. In term one X.X received an A, term two, a B plus, term three a B, and term four, a B. (Ex. D3; Tr. 840). The final grade was a B plus. The grades consists of exams which are weighted more heavily, homework (approximately 25%), lab reports, and class participation. (Tr. 841,

847).

Ms. X X saw a “tremendous amount of growth” in X.X over the year. (Tr. 842). Toward the end of the year X.X was having substantive difficulties with regard to homework assignments. Ms. Gillilland did not recall if she reported the difficulty to anyone. (Tr. 873). X.X's grades “slid down from the first semester”.

(Tr. 849). In the last semester she received a few grades low enough to require her to bring the tests home for a parent's signature. (Ex. P15, Ex. P17-4; Tr. 849). Ms. X X did not see X.X demonstrate any need for 504 accommodations or a referral to the CSE. (Tr. 842-843).

Ms. XX testified that she was X.X's sixth grade math teacher during 2007-2008. (Tr. 908-909). Ms. X recalled informing the 504 Committee on October 30, 2007, that X.X was performing “on grade level, meeting the normal required academic reinforcement that the sixth grade at the beginning of the school year received...” (Tr. 909-910, 990-991). X.X came into class from the elementary school with “good basic skills, reinforcement in some computation was needed.” X.X, as all of the other students, needed to learn classroom procedure, homework requirements, and quiz and test procedures. (Tr. 910-911). At the time of the 504 meeting, Ms. X estimated that X.X would have taken about eight tests or quizzes. (Tr.

975).

Ms. X described X.X's sixth grade performance as “good.” (Tr. 911). She was retaining material that was being taught. (Id.). X.X received a 79.8 grade average for the first quarter, 78.3 for the second quarter,

83.7 for the third quarter and 86.2 for the last quarter. (Ex. (D2-6).

X did not use or need extended time on Ms. X's math quizzes or tests. Ms. X allowed students extra time if they needed it. (Tr. 924). At no time did X.X require any accommodations during the sixth grade math class. (Tr. 925). Apart from one e-mail reminding Ms. X that X.X had requested additional time for a math test, Ms. X did not recall other requests or whether X.X asked to retake tests or quizzes with a grade of lower than 70%. (Tr. 966-967; Ex. P23). Ms. X testified that her policy was to allow students who failed a quiz or test to work on the material with her until they could show that they could achieve a 7 out of ten or 70%. Quizzes or grades below those scores would be sent home for a parent's signature. (Tr. 949-

950).

Ms. X testified that she calculates final math grades by factoring in handing in homework on a timely basis (except in September and October), quiz grades and test grades. (Tr. 986-987, 992). Class participation is not factored in to the final grade. (Id.). X.X began the year responding when called upon and raised her hand more frequently as the year progressed. (Tr. 987-988). X.X had no problems working with groups of students. (Tr. 988).

Ms. X testified that she used a math spiral notebook as part of the organizational skills she tried to teach the students. It was used to keep information from each unit organized and in one location for a period of weeks, ultimately to be used by the students in a unit quiz usually given at the end of a chapter. (Tr. 945-

947). Ms. X testified that X.X had no more problem maintaining the spiral notebook “than most sixth graders” and given a notation on one of the quizzes, dated February 5, 2008, it appeared that X.X had lost her notebook at least once. (Tr. 947; Ex. P20). In an e-mail exchange between X.X's mother and Ms. X dated January 28, 2002, and January 29, 2008, the parent informed Ms. X that X.X told her she “recently lost her spiral notebook” and “did not have the book while taking the spiral notebook quiz today.” She expressed concern about X.X misplacing her first spiral notebook in September. (Ex. P21). In response

Ms. X wrote: “Usually the notebook shows up in on of her other classes or in the locker of her neighbors.” (Id.). Ms. X testified that this statement does not indicate that losing the notebook was more than a one-time thing, but her way of saying “that is what happens when children misplace a book, all children. They often look in their neighboring lockers, not just X....” (Tr. 961-962).

The Parents' Witnesses

XX, X.X's mother, testified that the parents moved X.X to the XXXSchool in XXX(“XX”) so she could receive services for issues that had been identified in preschool. (Tr. 1012-1013). XX is a private independent school that follows a curriculum similar to schools in the United States. (Tr. 1013). Shortly after beginning the second grade, the teacher approached the parents alerting them to signs of reading problems, reading fluency, writing problems, and attentional issues. XX staff wanted to enroll X.X in a one-on-one reading and math program during the school day. (Id.). Dr. XX conducted testing May 24, 2004, from which XX understood that X.X was dyslexic, dysgraphic and had . (Tr. 1014; Ex. J2A). For the third grade, the XX developed an IEP for X.X and she began to take medication, Equasym XL, a medicine similar to Concerta. “The IEP was to focus on written skills, reading fluency, spelling comprehension, direction, following directions, providing her with extra time.” (Tr. 2233). She was enrolled in a program within the XX called the Specific Learning differences (SLD) where she received 1:1 or 1:2 instruction with a learning specialist one hour per day, five days per week. (Tr. 1015-1016, 2233). On standardized, normed tests X.X received time and a half. (Tr. 1019). X.X received the same IEP for fourth grade and the services were provided similarly. (Tr. 2233). With tutoring and medication, under an IEP, X.X was able to learn in the third and fourth grades. (Tr. 1017-1018). XX asked Dr. X X to evaluate X.X at the end of fourth grade “just to give some information to her next school.” (Tr. 2236). Two reports were generated, one on May 15, 2006 and one on June14, 2006.^[11] (Ex. J2B; Ex. D11) XX explained that the first report was revised after she had a discussion with Dr. X who “felt it was necessary to clarify whatever she wrote in her summary and conclusion.” (Tr. 1019, 22402242). The parent did not request that Dr. X make the changes nor did she object to them. (Tr. 1019, 2240). The family moved to New York, and on the recommendation of X.X's tutor, applied for her to attend the X school, a private special education school. The school had no openings at the time.(Tr. 1020, 2257). The family moved to the XXXX school district during the summer of 2006 and enrolled X.X at the XXX Elementary School where she began in September. In August, the parents hired a tutor from the X School, X X, to work with X.X once a week, using Orton Gillingham methodology, on phonics, spelling, reading, written expression and penmanship. (Tr. 1027-1028, 1029, 2254). X.X worked with Ms. X from August through the spring of 2007. (Tr. 2254-2255). In mid-October, X.X's mother sent an e-mail to Ms. X, X.X's fifth grade teacher, noting that the learning specialist was meeting with X.X twice a week and was unaware of X.X's IEP. XX wrote: “I'm a bit alarmed, as I see X. struggling with most of her homework assignments” and noted that her daughter seemed to be regressing. She requested five days per week of special instruction, in keeping with her existing IEP from the XX. (Ex. P24; Tr. 2245). Subsequently, XX recalled meeting at the school to discuss a 504 plan for X.X's fifth grade year. (Ex. J6). The parents wanted X.X to receive services from the learning resource center for five days per week, but the team offered only three. (Tr. 1034-1035, 1036). The parents thought that with the tutor one day a week the plan would be “satisfactory.”(Tr. 1027). The learning specialist worked with X.X on written expression, sentence structure, reading comprehension, reading fluency, spelling, editing and organizational skills. (Tr. 2252, 2476) XX stated that X.X's fifth grade year at XXX “went okay.” She “worked very hard. She was very eager to learn.” (Tr. 2255-2256). “She still had many issues academically with her writing, written expression and verbal command, organizational skills, editing, spelling, speed at which she can work.” (Tr. 1030-1031, 2256). XX spoke to the fifth grade teacher and the learning specialist about these issues frequently during the year. (Tr. 1036-1037). She also spoke to them about extended time for tests because she understood that X.X was supposed to receive one and a half time and wanted to be sure she received it on classroom as well as state tests. (Tr. 1040, 1055, 1865-1866; Ex P25; P27). XX also discussed the parents' concerns about X.X's ability to do her homework. (Tr. 1057-1061; Ex. P28). X.X struggled with homework in her core subjects. In a March 2, 2007, e-mail XX informed Ms. X that she and her husband “are assisting her on her outlines and helping her organize her paragraphs.” (Ex. P28). On written assignments X.X did not know where to start and had issues following directions. (Tr. 1060). The parents were doing nearly all of X.X's homework with her. (Tr. 1061). X.X's fifth grade reported grades were “developing and satisfactory”, particularly in English and writing. (Tr. 1060). According to XX, in fifth grade X.X “had a tough time socially. By the end of the year, she told me she had no friends in her classroom. She struggled to maintain friends.” (Tr. 1061, 2256). The parent thought that a lot of the difficulty was due to X.X's communication skills and language development. XX spoke to Ms. X about the social issues a number of times. (Tr. 1064-1065, 1070; Ex. P29, P30). X.X spoke to her mother about what was going on and was “distraught over what was happening in the classroom, outside the classroom, on the playground...” (Tr. 1065-1066). It was affecting her academically. (Tr. 1065). XX thought that Ms. X “attempted” to resolve the issue, “but the girls still were relentless through the year.” (Tr. 1068, 1070-71; Ex. P31). XX testified that at the October 31, 2007, 504 meeting each of the teachers spoke about their experiences with X.X in the classroom. (Tr. 1912-1913, 2275). Ms. X X said that X.X was doing very well and had just finished a paper on which she had done extremely well. Mr. X X said that X.X “was doing very well in the social studies class and a delight to have in the classroom.” (Id.). Ms. X X said that X.X “absolutely loves science” and did well on one or two tests or quizzes. Ms. X said that X.X was “doing okay” with some organizational skills issues. She stated that X.X did take extra time on a recent test “but I offer extra time to all of my students.” (Tr. 1913-1914; see P1.). Mr. X mentioned that X.X had average performance on the ELAs in fifth grade, but did not include that she had time and a half to take them. Ms. X, the school psychologist, said that X.X had . She did not have any of the documents from the XX or XXX including X.X's existing 504 plan. They had not yet been transferred from XXX.^[12] (Tr. 1914-1915). To XX's knowledge, the documents that are referenced in the based upon section of the October 31, 2007, 504 meeting information (Ex. J2C) were not at the meeting. (Tr. 1917-1920). XX and X X each voiced their concerns about X.X's reading, writing, the extra time she needs on tests and the amount of homework help she needed. The parents then were told by Ms. X that X.X was “doing great” and was to be exited from the 504 plan. (Tr. 1915-1916). XX doubted what the teachers reported because of the struggle X.X had doing homework and because Ms. X said X.X was not taking extra time when in fact she used extra time. (Tr. 1929, 2275-2276, Ex. P1). The parents could not “believe that she could do well in one place and poorly in another.” (Tr. 2277). XX testified that she spoke to Ms. X after the meeting and told her that the team had made a mistake, did not base the decision on any of X.X's background information, but only on a handful of tests and general education teacher's comments that she was doing great. X.X had not been given the 504 accommodations of her previous plan and still needed the support (Tr. 1922-23). XX and X X met with Dr. X on November 13, 2007 to discuss their concerns about the loss of X.X's 504 plan. They provided him with an overview of X.X's history through the removal of the plan and asked him to review the decision because of the serious issues they were seeing. (Tr. 1931-32). Dr. X agreed to conduct a review of the 504 decision. XX followed up the meeting with a letter, dated November 19, 2007, to Dr. X, and testified that she was asking that he evaluate X.X, “to do what he has to do to get my daughter either reclassified as a 504 or under IDEA.” (Tr. 1933-1934; Ex. J2D). XX knew that the 504 team had insufficient documents at the meeting and she wanted the team to look at the documents related to X.X and conduct a current “evaluation”, “review” or “something” to get her daughter “reclassified.” (Tr. 1934). In her letter, XX explained, she was asking for an “appeal”of the decision because the parents were challenging the removal of her services. (Tr. 1934). Subsequent to the letter, no one ever contacted the parents regarding what an appeal process would be. XX repeatedly contacted Dr. X after the November 13, 2007, meeting to learn the outcome of his review. (Tr. 1935-1936, Ex. J2D, P5, P46,P47, P51). She wrote a November 5, 2007, e-mail asking for confirmation that he received her letter requesting an appeal. (Ex. P46). She sent an e-mail on January 5, 2008, asking for the status of X.X's 504 plan. She informed him that the parents started to have X.X undergo a psychological evaluation that would be completed in February. She expressed concern over recent writing assignments and her need for extra time on tests. She asked how to go about getting “additional help in the resource room.” She wrote: “Do we ask for another CSE meeting?” (Ex. P5)13.

13 XX testified that she had not asked Dr. X for a CSE prior to this e-mail. (Tr. 2287). XX testified that she had a lengthy telephone conversation with Dr. X on January 10, 2008, to “see if we can move on with X.'s situation”, to learn “where he stood in the review process or this appeal, and requested a CSE meeting as per her prior e-mail. (Tr. 1975). Dr. X informed her that there would be no CSE meeting “because a claimed disability has to be seen” and the district was not seeing any evidence of any issues by the teachers. (Tr. 1975-1976). XX described to Dr. X the trouble X.X had doing her homework assignments, the difficulty X.X had expressing her thoughts verbally, the instances of bullying at school, and the need for the district to evaluate her. (Tr. 1979-1980). Dr. X said that according to Mr. X “R. is doing great”, and he wasn't going to evaluate her.”(Tr. 1980-81). On January 13, 2008, XX wrote an e-mail to Dr. X and Mr. X informed them of a recent math test on which X.X required and was given extra time and informed them: “We are proceeding with testing and plan to pursue services for [X.X] pursuant to the IDEA.” (Ex. P47). XX did not get responses to any of these e-mails. XX sent Dr. X an e-mail dated November 26, 2007, checking for confirmation that he received her letter. (Ex. P46). He did not respond to her e-mail. She called and left messages with Dr. X's secretary, but he did not call back. (Tr. 2283). From the time of the October 31, 2007, 504 through January, 2008, XX had continuing discussions with X.X's teachers. X.X was unable to do her work independently. “She was confused with directions.” She did not know where to start or how to write an outline. According to a response from Mr. X X, X.X mistakenly understood that she was not allowed to use her textbook for a social studies essay. (Tr. 19431944; Ex. P48, P49). In a February 4, 2008 e-mail XX wrote to Dr. X and Mr. X to inform them that Dr. X's psychological evaluation and report should be finished by the second week of March. “I want to give you sufficient time to plan a CSE meeting after this date. I would appreciate some notice as I will be asking Dr. X to join us in this meeting.” (Ex. P51)14. Dr. X sent a letter to the parents dated February 11, 2008, finding that X.X was ineligible for continuation of the 504 plan. XX disagreed with Dr. X because she did not think that a proper evaluation of X.X had yet taken place. (Tr. 1998). The parents both continued to do X.X's homework with her. In February or March of 2008, the parents “saw a noticeable decline” in X.X's work and hired a tutor once a week. X.X had “failed several tests, quizzes in math and science, some homework as well.” (Tr. 2015). XX had to sign the tests X.X failed and she wrote notes to indicate whether X.X had used extra time to finish the work. (Ex. P14; P19, P20; P20A; P56; P57; P59; Tr. 2016-2018, 2024-2025, 2044-2045). XX continued to send the teachers e-mails about the trouble she saw X.X having. XX wrote to Mr. X X and Ms. X X and informed them that the parents were helping X.X write the essays and do homework because she could not do the work on her own. (Tr. 2002, 2058-2059; Ex. P54, P60; P63). X.X reported that she took extra time on many science tests as well as math tests in sixth grade. (Tr. 2511-2512). She went for after school help in math and science. (Tr. 2513). X.X often misplaced her work. (Tr. 1995). She lost the CD to her math textbook. (Tr. 2084-2085; Ex P65). Throughout the year, XX saw X.X having organizational issues. (Tr. 2085). XX spoke to Mr. X throughout the year about bullying issues. (Tr. 1875). X.X talked to her mother about bullying on a daily basis. (Tr. 2295). XX witnessed how X.X was treated by kids when she went on school trips. (Tr. 2007-2008). XX spoke to the teachers about the bullying from February to June. (Tr. 2009). “It was brought to Ms. X's attention, her health teacher, Ms. X , and also again, Mr. X.” (Tr. 2482). One incident, after which the bully was disciplined, was reported to XX by Ms. X. (Ex. P55).

14 XX gave Dr. X Dr. X's evaluation in August 2008. (Tr. 2289) XX recalled writing to Ms. X X about X.X's penmanship and sentence structure. (Ex. P61-1, letter dated June 17, 2008). Ms. X X responded in an e-mail saying that “handwriting...is not my area at all. However, what I will say is that [X.X] can and does write neatly when called to do so. For example, her ELA essays/short answer questions and her benchmark essay were all written VERY neatly. There she was quite conscious of her presentation and of her sentence structures.” (Ex. P61-2). Ms. X X further noted that on worksheets sixth grade students often write answers sloppily opting for “fragments and lists and bullet points over sentences.” (Id.). She acknowledged that X.X “can be sloppy, but I have other students with far worse handwriting than hers. I can always read [XX’s] writing, so I have to say that it is a nonissue with me.” (Id). XX first learned of the benchmark assignment (Ex. D6) in this e-mail, never saw it prior to the hearing, and never saw any of the ELA written work. (Tr. 2063, 2090, 2391, 2396). The first time XX saw the benchmark test she was amazed that her daughter “was able to complete the assignment in the time given and the level of writing that she did in that given time.” (Tr. 2091). Based on the amount of time it was taking X.X to read for comprehension at home, XX estimated that it would have taken X.X between 30 and 40 minutes, possibly 45 with a break” to read the Kurt Vonnegut short story, “The Lie.” (Tr. 2097, 2393). XX recognized the handwriting on the cover page and outline to be X.X's with poor use of capital letters and “sloppy”. (Tr. 2099). As for the essay itself, the parent testified that she “never” has seen “her write anything as neat as this, even to date. And the line up of her letters across the margin is nearly perfect. The amount of energy it would take X. to write this neatly, based on this meager outline,...within 80 minutes, it's impossible.” XX thought that her daughter would have needed something like a rough draft. (Tr. 2099-2100, 2395-2396). Looking at the rubric XX noted that Ms. X X marked X.X as “developing” skills in all graded areas. (Ex. D6-6). XX wondered if “developing skills means skills exist but are not excellent yet”, how did her daughter receive the grade of A-, since an A, I would think, would be mastery of skills.” (Tr. 2100). She added, in English, “...I believe X. was grade locked at an A for the entire year, no matter what type of work she produced.” (Tr. 2101). XX testified about a speech on pet peeves X.X gave in June 2008. She was “shocked that X. was actually able to give a speech at all in sixth grade, due to her issues with her speech, her problems, the way that she spoke even to us. The way she interacted with other people.” (Tr. 2063-2064). XX explained that X.X's “verbal command” was similar to the way she wrote, in fragments. “And I cannot believe that X. had perfect scores for poise, gesture, enthusiasm, volume, pitch....When X. spoke she had an articulation problem and a reverse swallow. It was almost unintelligible when she spoke and inaudible.” (Tr. 24952496). XX wanted to see the videotapes Ms. X X had filmed of the students making these speeches because of the discrepancy between what she was told about X.X's speeches and what she and her husband observed on a daily basis. XX testified that X.X told her that for the pet peeve speech, “at both times that the class was filmed, Mr. [sic] X X put the video camera down when it was her turn.” (Tr. 2500, see Tr. 2517-2518). By e-mail dated June 18, 2008, Mr. X informed the parents that X.X's team reviewed her 6th grade performance and unanimously recommended that she study a foreign language the following year. XX requested that X.X not take a foreign language, but instead take a cultural class. (Ex. P66; Tr. 2389-2390). In XX's view, no matter how poorly X.X wrote, she ended up with an A. (Tr. 2071) In July 2008, the parents met with Mr. X, the principal of XMS, because, they were “amazed” that X.X received a letter grade of “A” on a final social studies paper and exam, given the quality of it. (Tr. 2080-2082; Ex. P64; Ex. P68). XX testified that Mr X stated “that this paper is not a typical writing of a student exiting sixth grade.” He seemed very surprised to learn that she and her husband had helped X.X helped her throughout the year with writing and organization. (Tr. 2149, 2384, 2501). Mr. X reassured the parents that there were very good teachers in the seventh grade and “he would try to take care of her.” (Tr.2149-2150, 2502; Ex. P68). From February to June the parents had X.X undergo several evaluations. Dr. X just had completed her neuropsychological evaluation. X.X also was evaluated by Dr. X for speech and language, Dr. X for an oculomotor evaluation, and Dr. X, a psychiatrist. (Tr. 2101-2102). Dr. X referred the family to Dr. X “to address some of her anxiety issues and perhaps talk to her.” (Tr. 2102). Dr. X saw X.X approximately six times beginning in November 2007 into the spring and wrote a report. (Tr. 2102, 2398; Ex. J2H). Dr. X explained his report to the parent stating that X.X “was suffering from anxiety and stress to the school environment, socially and academically. And he considered that this was an anxiety disorder.” (Tr. 2103). He changed X.X's medication. (Tr. 2104). The parents did not give the district Dr. X's report in the sixth grade because she “felt they had enough. This was very personal.” (Tr. 2104, 2400). On X's test X X wrote when asked what concerns you most about this student: “in English I have no real concerns. Her handwriting is sloppy, but she is an adept typist. She has trouble organizing her thoughts and uses basic sentence structures but no more than many sixth graders.” (Ex. P34-226). XX stated that this was consistent with what Ms. X X was telling her at that time, December 20, 2007. (Tr. 2315-2316). XX pointed out that Ms. X X indicates that X.X is somewhat above grade level, has trouble organizing her thoughts and uses basic sentence structures (but not more than many sixth graders), and sometimes loses her lunch box, lunch money, permission slips or homework yet X.X was receiving As. (Tr. 25052507; Ex. P34-226; Ex. 34-229; Ex. 34-373-377). All of Ms. X X's communications with the parent until that point said: “She's doing great.” (Tr. 2507). None of the teachers thought that X.X got teased a lot. (Ex. P34-240; P34-269; P34-276; Tr. 2320). X began vision therapy with Dr. X in the spring of 2008 and continued until she left for camp that summer. X.X did not finish the therapy. Although Dr. X recommended a re-evaluation after three months, X.X did not have it done because she started at X. (Tr. 2403-2404). X.X did not get the glasses he recommended for near visual activities. (Tr. 2404; Ex. J2I-1).

From Dr. X, XX understood that X.X suffered from an articulation problem and a reverse swallow, which meant she was speaking with a “juicy” voice making her unintelligible at times and that she suffered from an auditory issue making it difficult for her to “regurgitate” back something that she had heard. (Tr. 2105).

After receiving these evaluation reports, the parents hired an attorney, X. X. , to help them approach the district. Ms. X wrote a letter to the district requesting a Section 504 meeting for X.X and attached Dr. X's report, explaining that Dr. X “identified a physical impairment that substantially limits [XX’s] auditory processing and negatively impacts her education.” (Ex. J2G). She notified the district: “We will request eligibility, individual speech/language therapy, testing accommodations to have directions clarified and extra time, and resource room to teach her visual organizational strategies and to be sure that she understands homework assignments.” (Ex. J2G).

In preparation for the 504 meeting, Ms. X advised the parents to bring in only Dr. X's report at that time. (Tr. 2406). Mr. X started off the June 12, 2008, Section 504 meeting by “describing how X.'s year was for Dr. X, how well she did in school, ...how popular she was and how many friends that she had. She was doing extremely well and was doing well on her ELAs.” (Tr. 2162). XX recalled Dr. X repeatedly asking where the disability is. In response to reviewing Dr. X's report, Ms. Lorie, the speech therapist, “basically said X. just had a small speech impediment and didn't think anything was wrong with X.” (Tr. 2162). Dr. X's report was not reviewed because XX had not yet turned it in. (Tr. 2163). No teachers, past or present, were at the meeting. (Tr. 2164).

XX confirmed that Ms. X had asked for a full evaluation at the end of the meeting and when Dr. X asked whether it was under Section 504 or under the IDEA, Ms. X said that she wanted time to discuss it with her client. (Tr. 2164-2165, 2422-2424). XX testified that she tried to contact Ms. X after the meeting, but got no response. After many e-mails and calls went unanswered by Ms. X, the parents discharged her, in a letter dated July 15, 2008. (Tr. 2166, 2424-2425, 2425-2526; Ex. P70).

The parents took X.X to a counselor, X X, for social skills training in a group of three or four girls.(Tr. 2108). At the end of the sessions, Ms. X provided a report. (Ex. J2M).

XX testified that she did not remember ever receiving a copy of a Procedural Safeguards Notice (Ex. P44) referenced in documents from the district informing her that X.X received section 504 accommodations, dated November 2, 2006, or her signed consent for the accommodations dated November 6, 2006. (Tr. 1863-1865, 2251-2252; Ex. J7, Ex. J8). She did not think that she received the procedural safeguards notice referenced as enclosed with the first notice for X.X's 504 meeting in the fall of 2007. (Tr. 1877; Ex. P9). She did not receive a procedural safeguards notice with the rescheduling notice for the October 31, 2006, 504 meeting. (Tr. 1905-1906, 2262; Ex. P10). She did not receive a procedural safeguards notice with the letter informing the parents that X.X's plan had been removed. (Tr. 1932-1933; Ex. J12). Following the June 12, 2008, Section 504 meeting, the parent received the district's Section 504 Committee Recommendation of Ineligibility, dated June 24, 2008, referencing the parents' previous receipt of the Section 504 Procedural Safeguards Notice and inviting them to contact the office should they need an additional copy. (Ex. J2K). XX did not call the office to ask for a copy. (Tr. 2168-2169). She never received a procedural safeguards notice in connection with her other daughter who received services from the district. (Tr. 1906). The first time that XX received procedural safeguard notices at her home, by mail, was approximately one or two weeks prior to the August 19, 2010, hearing date in connection with X.X's IEP for the 2010-2011 school year. (Tr. 24772478). XX received the IEP with a cover letter stating that the procedural safeguards notice was enclosed. It was not enclosed so XX signed the document and returned it to Dr. X informing him that there was no safeguards notice. He forwarded a copy. (Id).

The parents arranged to meet Dr. X on August 19, 2008, to bring in the additional reports of Dr. X, Dr. X and X X. (Tr. 2107, 2109, 2405, 2431). They brought Dr. X with them because of her familiarity with X.X. (Tr. 2170). Dr. X presented her findings and her experiences with X.X. (Tr. 2174). XX and X.X retold X.X's history from receiving services at the XX through the fourth grade. They reviewed fifth grade at XXX. They described her struggles through sixth grade and their observation that X.X was “slipping downward”. They reported that she was pulling out her eyebrows in the spring. X.X stated that Dr. X thumbed through Dr. X's report and said he could agree on some of the points, but X.X still would not qualify for a 504 plan because the teachers reported that she “was doing great in sixth grade.” (Tr. 2176). The parents said he should do his own evaluation if he did not believe theirs and offered to bring X.X to the school the same day. XX testified that she told Dr. X that he was forcing her to remove X.X from the school, and if he did, she “will hold the school responsible...” (Tr. 2176). Dr. X did not indicate what action, if any he would take. XX told him that they should talk the following week. (Tr. 2180). Dr. X never mentioned the procedural safeguards or “due process” in any of the parents' meetings or any correspondence he sent to them. (Tr. 2479-2480). Immediately after the August 19, 2008, meeting, XX started to look for private schools for X.X. (Tr. 2177, 2435; Ex. P72). They were looking for a school that served high functioning students who had learning issues with reading, writing spelling, or dyslexia. XX consulted Dr. X who advised that X or X would give her an appropriate education. (Tr. 2181, 2438). The parents contacted Summit School, Winston School, The X School, The X School, and XX. None of the schools except X had a space available. (Tr. 21782179, 2192). XX and X X visited X and filed an application that same day. (Tr. 2433). XX learned that X focused on the Orton-Gillingham program, customizing it for each child. Every day X.X would have one on one tutoring. The core academic classes would be small and nurturing, and they would help build up the student's self-esteem. (Tr. 2181). XX called Dr. X the following week, on or about August 23, 2008, to ask for any update. According to XX he said, “you are just a XXXX mom looking for extra time for her child.” (Tr. 2182). XX ended the conversation and informed Dr. X that any future communication would be with her husband. X X called Dr. X an additional time to learn if XXXX can accommodate X.X with services and was told that she did not qualify. XX learned that X accepted X.X at the end of August. (Tr. 2184). The parents did not decide to send X.X to X until X X spoke with Dr. X again on September 5, 2008. (Tr. 2433). In the course of their conversation, X X told Dr. X that the parents were sending X.X to X. (Tr. 2438). X.X started at X on September 9th or 10th. The parents never informed the district of the decision to send X.X to X in writing. (Tr. 2438-2439). XX testified that X.X had a “slow start” start at X, but the parents started to see improvement through the year. (Tr. 2190-2191). X.X was a five-day boarding student because the school is about 150 miles from their home and depending on the traffic an hour and a half to a two hour drive each way. (Tr. 2191, 25412542). Because of the distance, the parents felt that attending as a boarding student was the only option at the time. (Tr. 2439, 2541-2542). Socially, the boarding program was good for X.X. (Tr. 2195). She had social and emotional support from the teachers around her and “by the group of students that lived there, because they were all in the same boat...” (Tr. 2195). The boarding aspect had similar benefits for the second year. In the evenings, X.X was required to spend between one and a half and two hours in the “study hall” where there was always a teacher to assist her if she needed any questions answered. (Tr. 2196). In the second year the parents saw X.X transition from a child who could not write to one who was able to put together her thoughts on paper and progressed from writing simple paragraphs to writing essays. The parents hired Dr. XX to observe X.X at X. She wrote a report dated March 23, 2010, stating that she thought that the school was an appropriate environment for X.X because of its nurturing, intensive, small, structured classroom. (Tr. 2197)^[15]

XX became familiar with X.X's teachers and tutor. Her Orton Gillingham tutor explained that she was beginning with X.X by going back to basics and working on multisensory phonics. (Tr. 2192). The parents observed that when X.X was home and doing homework “it was a different child from the sixth grade.” (Tr. 2193). “I saw a child that was starting to organize her thoughts, a child that was able to spell better and be more confident and not being frustrated when doing her work.” (Tr. 2193). X.X completed the first year at X and returned for a second year as a boarding student. The parents sent her back because “we wanted her to get the benefits of this intensive program....This child still needed help and assistance.” (Tr. 2193-2194, 2196). They decided to have X.X return for the 2009-2010 school year “[r]ight after seventh grade.” (Tr. 2439). X.X believed that the parents paid the deposit before the June 1, 2009, deadline. (Tr. 2440). X.X did not contact the school district “because nothing had changed”... “at that point and the end of sixth grade.” (Tr. 2194, 2440). The parents did not explore any special education schools in Westchester for the 2009/2010 school year because X.X “was having a successful year in seventh grade, and we felt to have that continuity of education was appropriate at that time, instead of jostling her around.” (Tr. 24402441). X.X continued to board for the 2009-2010 school year. (Tr. 2441).

Reflecting on X's Mission statement, XX thinks it was accomplished with regard to X.X. X's small classroom environment assisted X.X with her difficulty focusing due to her “They would redirect her and help her focus with the work at hand.” (Tr. 2208-2209). X provided an checklist to give parents and the doctors monitoring the students' medication an idea of what was happening in the classroom. (Ex. J13). X.X provided this information to X.X's attending doctors. (Tr. 2209).

Regarding Dr. X's letter dated October 20, 2008, XX testified that the parents never had heard from anyone that X.X “could have used some help.” (Tr. 2188). The parents had Dr. X X evaluate X.X in the fall of 2009 because they were seeking reimbursement for XXXX and XX “wanted to show what state X. was in at the time.” (Tr. 2444). X.X had been at X for one year and three months at that time (Tr. 2445).

In April, 2010, XX sent Dr. X a written request for an evaluation. (Ex. P75). XX testified that she never wanted to “pull her out in the first place.” (Tr. 2212). The school district evaluated her. The evaluations included a speech and language evaluation in which X.X 's scores were “average to high average on all subtests administered.” (Ex. P76). She had relative weaknesses when she had to interpret the language of given sentences and express the meaning in her own words. X.X's “imprecise tongue placement and slushy /s/ sounds distort her spontaneous speech, however, her speech is intelligible to the listener.” (Ex. P76). The evaluator noted X.X's difficulty understanding what was expected of her, needing prompting or repetition of directions to complete the tasks. The evaluator recommended that X.X seek help from her teachers to clarify instructions when she is uncertain and “should be encouraged to put forth her best efforts in speech to improve her clarity.” (P76 at 3).

X was administered the Woodcock-Johnson Tests of Achievement for her educational evaluation, performed June 7, 2010. The evaluator wrote: “[XX’s] academic skills in math are solidly average while reading and writing are relative weakness that fall in the low end of the average range. [X.X] does show very slow processing speed in mathematics and reading, she does not read fluidly nor is she able to do simple math without extended processing time. [XX’s] difficulties with decoding do limit her ability to read fluidly, and she will require extra time to accommodate for her slow reading speed. This is also the case for math where she also processes slowly.” (Ex. P77-3).

The school psychologist interviewed X.X, reviewed Dr. X's report and administered the BASC-2. The test results revealed average scores in all areas except the Hyperactivity scale “where her score corresponded to the at-risk classification range.” (Ex. P78). Her score for Attention problems was in the average range, although the psychologist noted that it was “relatively high (79%ile).” He thought that X.X “might need some support to facilitate a good social adjustment, if she were to return to the XXXX schools.” (Ex. P783).

Dr. X X, is a New York State licensed speech and language and voice pathologist in private practice (Tr. 1119-1120; Ex P32). She earned a Ph. D in 1972 from New York University New York Medical college in 1972 in the areas of psycholinguistics, speech, language, voice pathology.” (Tr. 1118-1119). She has been in private practice since 1970 and evaluates and treats children and adults, age 18 months to 82 years of age, having a variety of speech, language and voice and communicative deficiencies and disabilities.” (Tr. 1118-1119). X became a patient of Dr. X's in April 2008. (Tr. 1123). Dr. X recalled that X.X's mother sought a consultation because X.X, who was finishing up sixth grade at the time, seemed to know only “basics” in core subjects, but was getting exceptionally high grades at school, she felt that X.X's speech and language were severely impaired “because she was virtually non communicative”, and had very few, if any, friends. (Tr. 1124). Dr. X recalled that X.X presented with “[n]o eye contact, no affect, limited, if any, speech. Dunno was her habitual mode of response.” (Tr. 1125). Dr. X observed that X.X pulled out her eyebrows. “..she would stroke and pull at her eyebrows and would play with her hands and cough repeatedly.” (Tr. 1145). She rubbed her eyes often as well as yawned frequently. (Tr. 1146). Dr. X decided to use the Detroit Test of Learning Disabilities, revised in 1967, “which is one of the few, if any, language based instruments that goes up to age 19 years.” (Tr. 1126, 1229). In her view, it also has “excellent tests that tap into a youngster's auditory processing and sequencing abilities.” (Tr. 1126, 1260). She uses it “to identify where a problem lies in a child manifesting speech and language dysfunction, and it does that very well.” (Tr. 1258). Dr. X evaluated X.X over three sessions in April 2008. She stated that she administered the FisherLogeman Test of Articulation Competence to test her articulation “since her speech was virtually unintelligible.” (Tr. 1128, 1315)16. She gave her an audiometric examination to test her hearing because X.X stared at her blankly when she spoke and repeatedly asked “what”. (Tr. 1129, 1132). X.X's auditory acuity was found to be within normal limits. (Ex. J2G-2; P32-10717). Dr. X did a clinical observation and a transcript of oral language. (Tr. 1199, 1221).

Dr. X never attended a 504 meeting for X.X. She learned about the June 12, 2008, meeting and read the Committee notes. Dr. X testified that her evaluation report was “misrepresented”. (Tr. 1146). Dr. X disagreed with Mrs. Lorie's statement that the DTLA was not one typically administered as part of a speech evaluation. (Tr. 1148). Also, the 504 notes indicate that Dr. X had not recommended any modifications or programming. However, Dr. X did recommend speech and language pathology treatment twice a week. (Tr. 1149; Ex. JG-2).

Dr. X disagreed with the conclusion of the 504 committee and could not understand “why there was any question that this child needed a specialized program. (Tr. 1149). She telephoned Dr. X to discuss her concerns about her report and to ask that a paragraph be deleted. (Tr. 1150). She followed up the telephone call with a letter dated, July 24, 2008, again asking that paragraph four be deleted from the comment section as it misrepresented her findings. (Tr. 1151; Ex. P32-3-4). Dr. X did not explicitly agree to take out the paragraph, but Dr. X understood from his comments that he would read her report and understood her concerns. (Tr. 1152).

16 Dr. X 's notes do not indicate , by name, the Fiser-Logeman Test of Articulation or identify the results as such. (P32-106).

17 Dr, X testified that she did both the air testing and the bone testing. Her records show only the results of the air testing. (Ex. P32-107, Tr. 1266) Dr. X attended a meeting with the parents and Dr. X on August 8, 2008. (Tr. 1153). Dr. X reviewed her findings and the parents plead for services for their daughter. XX presented some of her daughter's work and questioned the grades she received given the quality of work that was done. (Tr. 1153). At the meeting, Dr. X also read Dr. X's neuropsychological evaluation report which he had not seen before. (Tr. 1155-1156).

Dr. X learned that the parents were sending X.X to X some time at the end of August or beginning of September 2008. The parents told her “at this point, all of the local schools already had their enrollment filled.” (Tr. 1157). She began to work with X.X before she left for X. (Tr. 1158).

Dr. X still was working with X.X at the time she gave testimony. She works with X.X on her “oromotor control, her articulation, her auditory processing and sequencing, her voice, eye contact, increased lip motility, all of the pragmatics of speech that go with social cuing and relating to peers and adults.” (Tr. 1159-1160). X.X's articulation has improved and her dysnomia has lessened. (Tr. 1160, 1166). Words are more at her disposal. (Tr. 1160). She has increased inflection when she speaks and maintains eye contact. She is using a lot of the strategies Dr. X has recommended to her in her spontaneous speech. (Tr. 1161).

Dr. X testified that she was “astounded” and “flabbergasted” by X.X's Sixth Grade Theme Essay on Kurt Vonnegut's short story, “The Lie”. She explained: “...because even to date, when I have her reading short passages from like the Journal News, XXXX Enquirer, ...two or three columns, it takes a good part of the session for her to read it silently. Then she summarizes it, ….I help her to get the words that she wants to say and get the intent in it. (Tr. 1192; Ex. D6). “It just did not look like her handwriting. Secondly, her organization of her ideas, and thirdly, her punctuation, to the extent that in the second paragraph, in the middle, ...she knew to put a period and then end of quotes. I can't see her doing that now....And here in a timed situation, from this little three-sentence outline, she was able to produce this all in an hour and ten minutes.” (Tr. 1193). Dr. X did not understand how X.X “physically and cognitively could have done it.” (Tr. 1193). Dr. X did not believe that the work was X.X's. (Tr. 1289).

Dr. X testified that as a neuropsychologist she did a “very broad evaluation to try to get an overall integrated picture of X.X's strengths and weaknesses” (Tr. 1365). Dr. X explained that she is trained in the Boston School process based approach. The interest is “in the process by which the child takes in information and processes” it, not specifically the scores although the scores are important. (Tr. 13591360). If the student performed at the lowest end of the average range, Dr. X views that as a weak performance. The high end of average means the student has a relative strength in that area. (Tr. 15171519). She uses the qualitative scoring language because “it's being used on the WISC-IV.” (Tr. 1493).

At the time that she conducted the evaluations X.X was not taking medication, but started a course prior to the completion of the report. (Tr. 1391). As stated in her evaluation report, her findings were consistent with previous testing which documented problems with dyslexia, dysgraphia and . (Tr. 1386). A reading fluency rate at the 16th percentile confirmed the previous findings that X.X has dyslexia. (Tr. 1390). Dr. X recommended speech therapy because X.X's difficulties with articulation/intelligibility, word retrieval, language formation and pragmatics “can impact all language related functions.” (Tr. 1391-1392). Dr. X often had to ask X.X to repeat herself, but she was able to understand her “[f]or the most part.” (Tr. 1483). Her articulation was not good, she slurred her sounds and she spoke quickly (Tr. 1526). There was slurring and her articulation was not always good, but Dr. X cautioned that she is not a speech therapist and does not address the physical aspects of speech. (Tr. 1483). She recommended social skills training because “she was having social problems.” (Tr. 1392). Dr. X observed issues with X.X's pragmatic use of language. She “didn't always try and assess what the listener was thinking or, ...whether she was communicating appropriately to context.” (Tr. 1392). Dr. X recommended psycho therapy to address issues of anxiety and reduced self-esteem. (Tr. 1392).

Dr. X recommended extended time because X.X has difficulty “focusing and organizing her thoughts.” She explained that as students advance in grades the organizational demands increase. In order to learn and remember the information a student needs to organize that information. (Tr. 1393-1394). She recommended a laptop because X.X's writing, as demonstrated on the TOWL-3, “is really bad.” (Tr. 1394). The recommendations Dr. X made related to attentional and executive functioning issues would enable X.X “to stay on task more.” (Tr. 1394-1395). Dr. X recommended remediation and some assistive technology related supports to address X.X's weak decoding skills. (Tr. 1396-1397). Dr. X's testing identified X.X's underlying difficulties or learning issues that were impacting her functioning and was not at an appropriate level. (Tr. 1399).

Dr. X explained that her characterization of some of X.X's WISC scores as “low average” when the manual says “average” is based on her view that someone who scores a the 25% (the low end of the average range) versus a score of 74% (the high end of the average range) is “far weaker”in the tested area. (Tr. 1405-1406; see Tr. 1424). According to Dr. X, this characterization is “permissible” in the WISC-IV manual, and is consistent with her training. (Tr. 1415). Similarly she used the descriptive term “low average” for a 25% score on the CTOPP. “The number gave me the qualitative description rather than what the manual said.” (Tr. 1406). She wanted consistency in her report. (Tr. 1406-1407). She offered a similar explanation for X.X's scores on the GORT, adding, “And even statistically, to me, this is weak, whatever you call it.” (Tr. 1408). Dr. X stated that even with a high score on the GORT reading comprehension, a student who scored a 16% on reading fluency has weak decoding skills and at the higher grades, when the demand increases, will not be able to perform at a satisfactory level. (Tr. 1409). The high average and average scores on the Stanford mean that “in sixth grade, [X.X] was able to use context to get an average score for comprehension. And she is capable of high level analysis. But if her accuracy is at the 16th percentile, which determined her fluency score, this is going to have significant impact.” (Tr. 1411). She described the Standford as “a structured relatively easy test.” (Tr. 1412, 15201521).

Dr. X testified that even though X.X's scores on tests for executive functioning fell within what is characterized as average scores, “executive functioning is not easy to assess in a structured testing situation.” Dr. X pointed to X.X's “lexical retrieval” and “fluency” issues as impacting on this domain. (Tr. 1418). X.X's scores on other tests that focus on executive functions revealed lower scores such as the Rey Osterrieth Complex Figure. Dr. X stated: “you cannot base does she have executive function or not on this limited set of standardized scores.” Instead she based her opinion on “[t]he organizational issues here, inattention to detail, not monitoring her performance, retrieval difficulties.” (Tr. 1419-1420). As it concerns executive functioning, the abilities that were not intact included the ability to organize complex novel information, planning, the ability to distinguish between essential and nonessential details, and poor monitoring of her performance. (Tr. 1497). These issues informed Dr. X that X.X “needs a lot of support” in a school setting. (Tr. 1497).

X consistently performed well across tests with mental flexibility and viewed it as a strength. She showed consistent weakness with word retrieval. X.X had “[t]errible organizational strategies. That is executive dysfunction to me.” (Tr. 1421). Dr. X agreed, that on paper, X.X's executive functioning seems to be intact. (Tr. 1437). Also, the Behavior Rating Inventory of Executive Functioning should take into account the sort of real life setting that the scored tests do not always address and X.X's teachers comments all reflected functioning within normal limits. Dr. X attributed this result to the fact that the classroom is a structured setting and X.X was spending a limited time with each subject matter teacher. (Tr. 1438).

After reviewing X.X's sixth grade theme essay for the first time, Dr. X testified that she doubted X.X could have done the work in 80 minutes, timed, given the density of the material. (Tr. 1432). It “absolutely” was not commensurate with Dr. X's findings regarding X.X and her ability to do written work. Dr. X doubted that X.X could have progressed in four months time to write the essay without having any interventions. (Tr. 1433). Dr. X did not know whether X.X was on medication when she wrote the essay. A student on medication could perform differently on this type of classroom assignment. Her mechanical handwriting could improve on medication. (Tr. 1479-1480). Upon review of her report, the statement “current medications included Methylphenidate” indicated that X.X was on medication at the time of testing. (Tr. 1506-1508).

Dr. X thought that X was a “wonderful placement” for X.X “because it addresses the reading, decoding, language-based issues.” (Tr. 1434-1435). Dr. X's latest experience with X was during her dissertation in

1994. (Tr. 1359). She has “followed” the school since then and testified that the school has not changed its program in any real way since she was there. (Tr. (1495).

Dr. X X, a psychologist with a full-time private practice, has been on the faculty at New York Hospital Weill Cornell Medical Center since 1986. (Tr. 1581). Her work specialty is in “child psychology in evaluating, testing and treating children with a variety of disabilities, such as learning, disability, autism, language disability, emotional disturbance, trauma.” (Tr. 1582, Ex. P37).

Dr. X is familiar with X and the program it uses. “It's a program, intensive program, using faculty that's trained in Orton Gillingham and other types of multi-sensory curriculum that's shown through research to be effective for children with dyslexia. There is also one-to-one tutorial with learning specialists to address reading, spelling and writing deficits, and a small student-teacher ratio so that children get a lot of individualized teaching and support.” (Tr. 1584). Based on a review of X.X's X reports, Dr. X thinks that X individualizes it's program for X.X. (Tr. 1660-1661). Dr. X thought that X was appropriate for the 20082009 school year “because it met her needs educationally based on Dr. X's findings, based on my findings in 2009, and also the issue of her emotion fragility.” (Tr. 1662). Dr. X thought that X was appropriate for the 2009-2010 school year because she “the program met her educational needs”. (Tr. 1662). Based on X's reports, X.X's self-report and the parents' report, Dr. X believes that X.X made progress and received an educational benefit from X, for both seventh and eighth grade. (Tr. 1664, 1729). Comments from the teachers are “very positive and when they were more specific about what they were working on it seems that she had improved and benefited from it.” (Tr. 1664). In a clinical interview with X.X, she told Dr. X that she felt comfortable at X and that she was learning. (Tr. 1664).

Dr. X acknowledged that X.X's teachers at X indicated that X.X had a somewhat problematic relationship with her peers. (Tr. 1739; Ex. P 36 at 178,182,184,186). Dr. X did not think that X provided counseling, but through the structure of the program had “faculty working in a facilitative way to help with any kind of social issues.” (Tr. 1738). She believed that “the whole immersion program” was “helping her to become a more confident learner” which, in turn addressed her emotional fragility. (Tr. 1738).

Dr. X testified that she administered two tests measuring cognitive ability, the WISC-IV and the KAIT, to add to the validity of the testing. (Tr. 1719). X.X scored within the average range on both tests, “which to me adds to the validity of the findings because it is concurrent and congruent.” (Tr. 1589, 1719). On the WISC-IV Dr. X found some language processing issues as X.X scored low on the test of pragmatic language. “There were marked discrepancies between verbal based tasks and nonverbal.” X.X “clearly was a stronger nonverbal, visual, spatial learner...which is consistent with dyslexia and is also common in attention deficit disorder.” (Tr. 1589). On the KAIT X.X also scored lower on the language-based and auditory tests and higher in the visual -spatial domain. (Tr. 1719).

Comparing her own report with the results found by Dr. X when X.X was in the sixth grade, “there are some points that are a little different, but overall I don't see a decline.” (Tr. 1604). She characterized the findings as consistent and cautioned that “different test measurements were used”. (Tr. 1607-1608).

Dr. X testified that she used the Perceptual Reasoning Index (PRI) to calculate the Ability Achievement Discrepancy Analysis because “in order to use a neuropsychological model, you compare strengths to weaknesses” and X.X is a nonverbal learner. (Tr. 1647). In Dr. X's view, the Full Scale IQ is a meaningless statistic because it blends so many different cognitive areas. Dr. X did plug in the Full Scale IQ test results and found that X.X “still would meet criteria for a reading disability. The reading composite score is still significant even using the full-scale IQ.” She further explained that the composite score in reading was significantly lower than predicted by her Full Scale IQ. (Tr. 1648, 1650-1651; Ex. P38-2). As per the manual for the WIAT-IV, Dr. X chose the Perceptual Reasoning Index over the Verbal Index because the PRIQ “may be a more appropriate measure of ability ...for individuals who are... speech and language impaired.” (Tr. 1687-1688). Dr. X pointed to X.X's 7th percentile score on the Test of Pragmatic Language and the 15th percentile on the Test of Adolescent Word Finding. Dr. X stated that evidence of a speech impairment was noted in the XX reports, Dr. X's work and substantiated in her report. (Tr. 1688). She plugged in the scores using the Verbal IQ as well and found out that the discrepancy still was significant for X.X in reading. (Tr. 1698; Ex. P10). Regardless of which index was used to calculate the discrepancy (using a computer), all yielded a result which correlated with the finding that X.X was a child with a disability. (Tr. 1747).

Regarding the 2007-2008, 2008-2009, and 2009-2010, school years, Dr. X stated that there was empirical evidence of her educational disability, “and also going beyond the numbers and the academic levels, there is a degree of emotional distress that certainly was getting in the way of her ability to function in school.” (Tr. 1657).

Dr. X reviewed the Sixth Grade Theme Essay and was told that X.X was required to read the story and write an essay in 80 minutes. She did not think that X.X could have accomplished the assignment as described because it was not consistent with the findings of her diagnostic evaluation. “It seems like this Kurt Vonnegut piece is pretty advanced in terms of its reading level. There is a lot to absorb here. She has a slow reading rate and she has a difficult decoding and she even has difficulty tracking her eye on the lines, and it's very dense text here” (Tr. 1673). She added: “I don't feel that this understanding of text is consistent with the diagnostic evaluation that I did, nor is it consistent with the writing sample that I have from X. as part of my testing last November and December.” (Tr. 1675).

Dr. X was asked to compare X.X's scores on the Delis-Kaplan and the WISC-IV administered both by her (Ex. J2P) and by Dr. X (Ex. J2F-23) and to testify whether any difference in scores was significant. (Tr. 1706). On the letter fluency subtest Dr. X reported 37th % and Dr. X found a 91%. She speculated that the improvement in letter fluency has to do “with a better command of words and the beginning sounds of them” (Tr. 1707-1708). In the Category Switching Subtest Dr. X reported above 99% and Dr. X reported in the .1%. (Ex. P36-172). Without Dr. X's raw data, Dr. X hypothesized that X.X “had difficulty following the directions and she had difficulty with convergent thinking”, a skill she apparently had a grasp of in the earlier testing (Tr. 1709-1710). On the Color Word Interference Test, for the Color Naming Subtest, X.X scored 375on Dr. X's administration and 91% on Dr. X's. Dr. X thought that X.X's visual tracking may have improved. (Tr. 1710). On the word reading subtest, Dr. X's finding was 63% while on Dr. X's scoring she achieved 50%. Dr. X stated that the difference is not statistically different, with both scores solidly average. (Tr. 1710-1711).

On the Inhibition Subtest, Dr. X reported a score in the 50% and Dr. X 5%. (Tr. 1711). Dr. X explained that the test is “highly timed. She is older so the bar is higher, and it has a lot to do with juggling the rules.” She made many errors. It is a skill she seemed to have a better grasp on when Dr. X tested her. (Tr. 1711). On the Inhibitions/Switching Subtest, Dr. X reported a score of 84% and “Dr. X scored her at 16%. (Tr. 1712). Dr. X identified a “theme” of X.X scoring lower on switching tasks and inhibition tasks. She explained: Executive functioning is highly correlated with attentional capacity and...I was concerned about how she was doing on Concerta and actually recommended that the parents seek pharmacological consultation to make sure the medication was correct. So to me these difficulties in executive function could be an indication that the medication was not serving her well.” (Tr. 1712-1713).

On the WISC-IV Dr. X found a significant difference between Dr. X's finding on the Processing Speed (scaled score 106, 66%) and her administration (scaled score 85, 16%). (Tr. 1717). Dr. X thought this difference was consistent with the Delius Kaplan numbers and thought that the Concerta could be “depressing her motoric speed.” (Tr. 1717).

Dr. X did not include a diagnosis with regard to X.X's emotional functioning because she wanted X.X to be seen by the psychiatrist. (Tr. 1728).

X.X. testified that he is the father of X.X and is employed as a managing director and associate general counsel at XXXX. He has no employment experience related to education or special education (Tr. 25782579). He stated that he was aware of his daughter being “dyslexic” since around second grade and noted her having a “speech impediment”. He added that her speech impediment “makes it very difficult to understand” and he has to ask her to repeat herself. The speech impediment, “in particular, sometimes causes problems with her interacting with other kids.” For example, he explained, at a birthday party he observed the other girls asking her “again and again to repeat herself.” (Tr. 2580). She is “not an emotional child”, but “gets anxious and shows that in various ways.” (Tr. 2580). She has issues understanding instructions. X.X. has been very involved helping his daughter with her homework, especially her written assignments, since second grade. (Tr. 2581-2582). While X.X was at the XX, she often would lose the homework. The teachers worked to help her keep organized. If “it was written work of any sort...she would sit and not know where to begin. She wouldn't understand the instructions.” (Tr. 2582).

X.X. corroborated XX's testimony regarding X.X's experiences in fifth and sixth grades and the parents interactions with the school district and teachers.(Tr. 2592-2593, 2681-2683). At the November 2007 meeting with Dr. X he thought that he and his wife basically were asking what do we have to do to get our daughter help. Dr. X said he would speak to the teachers and review the necessary information. (Tr. 26002601). By asking for an appeal the parents meant to have her evaluated and have a different outcome so that she could get services. (Tr. 2603-2604). During the three months that the parents waited for Dr. X's response, X.X struggled and was under stress. She would clench her fists and started pulling out her eyebrows. (Tr. 2602, 2606). “Her whole face would tighten.” (Tr. 2606). “And then she pulled her eyebrows out so much that a bald spot developed in her eyebrows.” (2606-2609; Ex. P80). XX took a picture of her in January or February of sixth grade. (Ex. P80). The parents took X.X to Dr. X to see “what exactly her issues were at that point in time and to get an independent view.” (Tr. 2602, 2609).

After receiving Dr. X's response, X X not know how the teachers were missing the issues the parents saw. X.X's grades did not make sense. As the parents had informed the teachers, X X was helping her with all of her written work. “And so there was this strange divergence between what we were seeing” and the teachers' reports that “she is doing fine.” (Tr. 2605). At this point X.X was “starting to have a bit of a meltdown. I mean, I was helping her with every piece of written stuff that she had to hand in” which involved “hours of trying to get her to get her homework done right.” (Tr. 2605-2606).

Regarding the sixth grade “benchmark essay”, X X testified that the handwriting on the first two pages was typical for X.X with her “name trailing off and lack of capitalization”. (Tr. 2644-2645). The outline also was consistent with the work he saw her do at home. She would write down a few words, not necessarily important issues in the reading. Based on the time he spent doing homework with X.X, he did not think that she would be able to read the fifteen page single spaced story in less than an hour. He also thought she would skip lines and have trouble with comprehension. He did not believe she could write the essay in the exhibit in eighty minutes. (Tr. 2646-2647). “The handwriting itself is the neatest I've ever seen her write. It's lined up on the left, which is, you know, a real chore for her. It's on the lines, which is also a chore for her.”(2647). X X thought it would have taken much more than eighty minutes and at least a draft or two in between with someone helping. (Tr. 2647-2648). He explained that it could take a couple of hours of working with X.X at home to get from the few words written on her outline to write an actual essay. (Tr. 2709-2710). Comparing what they worked on at home, on almost a nightly basis, and all of the work X.X brought home, X X could not explain how this work was possible in 80 minutes. (Tr. 2649). He thinks that it “is entirely possible” that X.X took more than the allotted time to write the benchmark essay. (Tr. 2703).

X.X. testified that he and his wife did not how to go about having the school reconsider the information so they hired an attorney to get another 504 meeting. The parents had three brief phone calls with her. They sent her all of the reports done to date. She advised them that Dr. X's report should be sufficient to obtain services for X.X and set up the 504 meeting. (Tr. 2613-2614).

After the June 2008 504 meeting the parents did not put a request in writing. They decided to meet with Dr. X and bring in the evaluations they had done. This past school year, the parents did put a request for a CSE referral in writing to the district, as instructed by Dr. X at the resolution session for the instant impartial hearing. (Tr. 2680).

Dr. X could not meet until August 19, 2008. (Tr. 2620). Dr. X told the parents that he disagreed with a number of things in Dr. X's report and the teachers reported that X.X was doing fine. He would not agree to have her evaluated. (Tr. 2622). According to X X, the parents pleaded for support for their daughter. XX said that if the district did not have X.X evaluated and give her services the parents would have no choice but to put her into another school and “hold the school responsible for that.” (Tr. 2623).

X.X. had two subsequent phone calls with Dr. X, September 4 and 5. (Tr. 2625) X X told Dr. X that the parents were “desperate”. School had started that day and the parents had kept X.X at home because they were not sure if it would be possible for her to go to XXXX. He informed Dr. X that they had looked at X because they felt forced into this situation. He reviewed the history of X.X up until fifth grade and how “miraculously” in sixth grade she no longer needed help and was an A student. X X told Dr. X that the parents want to keep X.X in the XMS, but that if the district does not evaluate X.X and see the issues, the parents will have no other choice but to put her in X. (Tr. 2625-2626).

Dr. X said that the rules require “that a substantial difficulty be shown in the classroom” and therefore the school was not required to take action to get her the extra services. (Tr. 2627). Dr. X did say that some of the teachers indicated she was having some difficulty and she might be able to get some extra help and extra time for her tests. X X noted that it was the first time he heard that the teachers are saying she had any difficulty. According to X X, he and Dr. X discussed how much help she might be able to get. X X asked if it would be formal and whether services would be guaranteed. Dr. X said he could not guarantee anything. X X told Dr. X that X.X could not return to XXXX without assurance that she is going to get the services. Dr. X said he could not do that. X X said wanted to talk to his wife to see if the parents could be comfortable without assurance and requested that Dr. X consider the family's situation until the next day. (Tr. 2627-2629). Dr. X did not tell the parent to put his request in writing. (Tr. 2629).

X.X. called Dr. X the next day and told him that the parents need assurance because they could not put X.X in the situation where she was not given services or she was given services and they were taken away. He told Dr. X that they needed to make the decision that day to avoid losing a seat for X.X at X. (Tr. 2630). Dr. X said that he would not guarantee anything. (Tr. 2631). X X told him that he left the parents no choice but to send X.X to X and that the parents would look to XXXX to cover the cost. Dr. X did not tell X X that written notification was required. (Tr. 2631). X X asked Dr. X to put the substance of their conversation in writing. (Tr. 2636). After X X called XX and told her that their daughter would be going to X, XX called the secretary at XXXX and informed her that X.X would not be attending and asked whether she needed to do anything. XX was told her call was sufficient. (Tr. 2632).

The parents researched possible schools. Dr. X was very familiar with X and thought it was an appropriate school for X.X. (Tr. 2632-2633). The parents were attracted to the school due to its purpose to “teach kids with special learning issues and particularly kids with dyslexia.” (Tr. 2633). Through research the parents learned that Orton Gillingham was “one of the preferred methods for teaching dyslexic kids.” They liked that the entire curriculum has that focus and all of the students are taught with that method. The classes are small and focused on teaching the students the right strategies for writing and reading issues. There was daily tutoring offered, one on one, tailored to X.X's needs. There was regular testing done, with reports sent to the parents regularly. The regular communication made it possible that if the parents saw issues they could speak to the teachers. (Tr. 2634). X X saw benefit to the boarding component because teachers are available late into the evening. There is a focused homework session where they have an instructor who can address any issues that arise. (Tr. 2635).

Dr.X sent the parents a letter consistent with X X's conversation. (Tr. 2636-2638; Ex. J2N). The parents were surprised by the statement that the XMS staff would have arranged for X.X to have support services without the need for a 504 plan because “that was actually what we were begging for the entire year” and this was the first time “we had ever heard that.” (Tr. 2638). X X never received procedural safeguards and first saw them at the hearing. (Tr. 2639). X X did not view the parents as being in an adversarial relationship with the school and expected that if they needed to be doing or saying something in a particular way, the director of special education would have told them. (Tr. 2640). The letters mentioning the safeguards were boilerplate and never included the safeguards, including the last letter which came with X.X's AIEP for the 2009-2010 school year. (Tr. 2641).

X X saw X.X progress slowly at X. She was able to work more independently. The parents received regular reports from the school and they were able to communicate about what they saw at home from her weekends there. (Tr. 2650). They decided to send her back for the eighth grade near the end of the seventh grade. They thought that it was futile to ask for an evaluation after their many attempts. (Tr. 2651). The parents did not send anything in writing because they did not know that it was necessary. Also, XXXX knew that the parents had pulled her out. (Tr. 2651). Consistent with the first year at X, X.X was making real improvement in her ability to read over the second year. Her reading still was slow, but she was able to read in a more focused way. Her writing improved. “She was more independent in her ability to simply organize her thoughts and actually write. She still had problems with spelling, punctuation to some extent”, but there was “real” and “steady” improvement. (Tr. 2652). X had given her strategies for getting her thoughts down on paper.

The parents paid X a deposit on September 3, 2008, to hold a seat for X.X. According to X X, the parents have paid approximately a total of $100,000 for X.X's tuition at X. (Ex. P81, J2O).

Dr. X X, academic dean of The X School, testified that he oversees the curriculum for students in grades 2 through 12, works with the teachers on professional development and mentoring, counsels and advises students in small groups and individually around academic issues, and works with parents and school districts related to students' academic programs and their progress at X. (Tr. 284). He described X as “an independent day and boarding school for students grades 2 through 12 who are diagnosed with dyslexia or have similar language based learning differences.” (Tr. 284-285). The teachers have at least a bachelors degree. X does not require teachers to be certified. New teachers go through “an extensive 70-hour Orton Gillingham course” that X teaches (Tr. 287). The Academy of Orton-Gillingham Practitioners certifies X “both as a school setting where Orton-Gillingham is appropriately conducted, and also as a training center for teachers” (Tr. 287-288). Orton-Gillingham is taught one on one so that teachers “are making decisions on a daily basis about the students' program, what needs to come next, what they need to revisit, ...” Since all of the teachers are trained in the methodology, the students are consistently reinforced in the approach to learning new vocabulary and in the structure and approach to writing (Tr. 289-290). Subject matter classes are small, with no more than ten students, and are taught in a very interactive and multi-sensory manner (Tr. 294). The program has three prongs. “First and foremost, we focus on the remediation of language skills, and the primary avenue for that is in the individual daily one-on-one Orton-Gillingham tutorial that each student has as part of their regular school day” (Tr. 285). The second prong “is providing stimulating, challenging and appropriate subject matter curriculum that is designed for our students' learning styles” Id. The third prong “is to support and develop a student's sense of self-esteem and their self-concept as a student, a person who has intelligence, can further develop that intelligence and skills through hard work...” (Tr. 285-286). Dr. X testified that he knows X.X as a student who began at X the previous year (Tr. 290). At the time she started he understood that she had a diagnosis of a reading and writing-based disability, “as well as having other challenges around language, particularly expressive language.” (Tr. 290). She also struggled with and continues to struggle with attention. (Id.) There are approximately 100 students in the school with approximately nine in the eighth grade (Tr. 311). X.X is grouped with these students for history, literature and science. For math, she is in an algebra I class with two eighth graders, a couple of ninth graders and maybe a tenth grader (Tr. 312). She has a one on one language training class Id. Dr. X described the student population as homogeneous in that all of the students have struggled with reading and writing skills. This is another aspect of the school that supports development around self-esteem (Tr. 286, 312). Cognitively, the students all are average to above average (Tr. 313). Dr. X explained that X.X is grouped with students of similar cognitive levels who have the same general challenges with reading and writing, so instruction is “geared towards, generally, that type of student. And then because the classes are so small, ...teachers are able to personalize things like review or reinforcement based on what a student needs.” (Tr. 337). X.X is in a language training class that is geared towards remediation of X.X's specific reading and writing skills and some “work around oral language...” (Tr. 338). Dr. X testified that X does not have speech and language therapists on staff “because what we do in the Orton-Gillingham tutorial covers the aspects of speech and language outside of articulation or other physiological needs. And we don't have students who have those needs” (Tr. 338). He testified that he has had conversations with X.X and can understand her. When she participates in class she is intelligible in terms of her articulation “when she doesn't feel rushed, pressured..., when she feels at ease” (Tr. 342). She formulated full sentences in class “more towards like the end of this year, like winter term...” It is something that the teachers have noted because it was not happening last year (Id.; see 344-345). Dr. X observed X.X a couple of times each of the two years she attended X. He also reviewed her report cards and other reports generated by her teachers. (Tr. 291). He testified that X.X adapted well to the teaching at X. She was tested in literacy skills and math in the fall and spring of the 2008-2009 school year. (Tr. 294-295). For an assessment of reading, X administered the Woodcock Reading Mastery Test subtests of word identification on which X.X's October 2008 standard score went from a 91 to 96 and the percentile went from 27 to 39. On the word attack subtest her standard score went from a 98 to 107 and the percentile changed form 46 to 68. (Tr. 298; Ex. P3-33). In the fall her reading accuracy and fluency were measured as below average, but her reading rate was average. (Tr. 319). In May 2009, X.X's reading rate still was average and her reading accuracy and fluency remained below average. (Tr. 319-320). On the Gates-MacGintie Reading Test, Fourth Edition, X.X moved from the 66th percentile to the 82nd percentile within the same level test. (Tr. 299). In comprehension she went from a 90th percentile to a 77th percentile. (Id.). Dr. X could not say what accounted for the drop in her comprehension score. (Id.). The test of written spelling resulted in similar scores for both tests. (Tr. 297, 299-300). Dr. X did not know why there was no change in these scores. (Tr. 300; Ex. P3-33). In math she was given the Stanford Diagnostic Math Test. Her standard score increased from 717 to 782, from 85% to 97%. (Ex. P3-34). The test is administered in September largely to help determine the student's math placement, both the level and the make up of the class. (Tr. 300). Dr. X testified that all of X.X's teachers felt that she made progress during the 2008-2009 school year. She “was developing and applying some better skills ...in terms of writing, in terms of reading accuracy, in terms of...volunteering in class...” (Tr. 302). In October of 2009, twelve months later, X.X again received a standard score of 98 on the reading test. As explained by Dr. X, she had to have answered more items correctly in October 2009 in order to maintain that score when she...is being compared to a norming sample of students who are a year older than the norming sample of students she was compared to in October of “08.” (Tr. 356). She also scored more correct answers on the Gray Oral Reading Test. (Tr. 296, 299). Dr. X testified that the teachers also, informally, look at an independent writing samples at the beginning and end of the school year. Dr. X observed that X.X's cursive writing was “in place”, she was better able to organize the information as seen in her use of paragraphs, and her spelling was somewhat improved, from the beginning to the end of the school year (Tr. 300-303; Ex P3-35,36,37). Dr. X believed that X.X has shown more areas of growth over the 2009-2010 school year. She has made noticeable growth in her individual language skills. “She has transitioned from more basic phonics concepts into intermediate phonics and is getting into morphology and Greek and Latin elements of the language that really help her to unlock how that system works.” (Tr. 304). “She's moved from writing basic paragraphs to better organized and more informative essays. She has improved and varied her sentence structure.” (Tr. 304). She also is more vocal in class. She doesn't avoid opportunities to teach classmates and is better with group work. (Id). Dr. X testified that the teachers feel that X.X's progress for the 2009-2010 school year is evident in the daily work that she does, but a comparison of test scores was not available because the spring tests had not yet been administered. (Tr. 307-308). Dr. X was asked to compare the scores on Dr. X's administration of certain tests in February 2008 with those administered by X in October 2008. Dr. X said that X.X was not able to answer or do as well on the test when X tested her (Tr. 346). “And therefore, there may be some regression noted there.” (Tr. 347). On the GORT, X.X scored in the 16th percentile for accuracy and fluency at both testings. (Tr. 322, Ex. P3; Ex. J2F). Comparing X.X's scores on the Woodcock Reading Mastery test, she received the same standard score on word attack in October of 2008 and October 2009, lower than her May 2009 score. (Tr. 325). Her score on the GORT subtest for reading rate, fluency and accuracy, fell from May 2009 to October 2009. (Tr. 327). Dr. X stated that students some times “make a regression” from during the school year over the intervening summer months because they are not working at as intense a level. (Tr. 326).

DISTRICT'S REBUTTAL CASE

Mr. X X testified that he is the house counselor of XXXX where X.X was a student a few years ago. (Tr. 2994-2995). He was in charge of monitoring 504 students and making people aware of what the provisions were and what the accommodations were. (Tr. 3020). Prior to X.X coming to XMS, Mr. X met with people from the elementary school who had worked with X.X. (Tr. 3022). He later stated that one person was X.X's classroom teacher but he could not recall exactly who he spoke to. (Tr. 3033). He did not recall what they said to him. (Tr. 3033). He had a copy of her 504 plan. (Tr. 3023). Mr. X stated that once the school year began, to make sure that the 504 was followed up until the October 30, 2007 504 meeting, “he had frequent discussions with teachers about X.'s performance as it related to her overall progress and to the degree that the 504 accommodations were coming into play in the classroom. (Tr. 3034). “We would have discussed that on a pretty regular basis, since as I said, I do have frequent meetings with the teachers.” (Tr. 3034). “She needed a level of support that was typical of a lot of adjusting sixth graders. She didn't need support that was outside of what most sixth graders need.” (Tr. 3040). Mr. X did not have any notes or other materials that related to his role of monitoring X.X's 504 plan in his records. (Tr. 3034). Mr. X did not recall it ever coming to his attention that the 504 plan for X.X was not being followed prior to the October 30, 2007, meeting. He did recall “discussing with the team the accommodations on the plan and the provision of those accommodations by the teachers.” (Tr. 3042). He would have discussed X.X's upcoming 504 meeting at a team meeting shortly before the 504 meeting. (Tr. 3024). Mr. X spoke to the parents about their concerns regarding X.X's academics. His role was to check with the teachers and get back to the parents. X.X's writing skills were not where the parents thought that they should be. (Tr. 3017). “The provisions of the 504 plan would have been made available to the teachers with the instructions that these accommodations were to be followed until...there was something changed in that plan.” (Tr. 2996). Mr. X testified that a student can get extra time on the state assessments only if they have a 504 plan or IEP that provides that accommodation. If the student does receive additional time they would take the state assessment in the learning resource center. (Tr. 2998). Mr. X had no recollection of where X.X took the State assessments and was not aware of any record that is kept of students taking the assessments in the Learning Resource Center. (Tr. 3029). Mr. X stated that he was not at the October 30, 2007, 504 meeting for X.X.^[18] Dr. Michel X was recalled as a rebuttal witness. Dr. X testified that he did not recall any requests from X.X's parents for the district to perform an evaluation on X.X between November of 2007 and February 2008, the time between the meeting with the parents regarding their request for an appeal of the October 30, 2007, 504 meeting until he wrote his February 13, 2008, letter denying their appeal. (Tr. 3062). The first time that the parents requested an evaluation in writing for X.X from the district was on or about April 12, 2010. (Tr. 3062). Dr. X did not consider conducting an evaluation of X.X during the time he was corresponding with them. (Tr. 3066). He did not have any interest in having the district conduct an evaluation when he learned that the parents were having an independent evaluation done. (Tr. 3066-3067). Nor did the parents ask for a CSE meeting in that time period. (Tr. 3067). Dr.X testified: “If a request for an evaluation would have been made orally, I would have told the parents to please put it in writing ...”(Tr. 3071). When Dr. X met with the parents in November 2007, after the 504 team exited X.X from her plan, he did not advise them of their due process rights, such as it concerned their ability to make a specific demand for an evaluation, nor did he advise them of their due process right,under the IDEA, to seek an impartial hearing if they did not like the decision of the 504 committee. In his view, he believes that under Section 504 the district needs to have a review process in place, which XXXX fulfills by having those cases come to his attention. He told the parents that they could send the case to him for a review. (Tr. 3075). After receiving Dr. X's report, “the student was not around to be evaluated. By the time that we received the evaluation, the child was elsewhere.” (Tr. 3083). He was not asked for an evaluation at that time. He was asked to consider the report and he did. (Tr. 3084-3085). He considered the test scores that she reported to be valid. (Tr. 3088). Subsequently, he did not consider having X.X evaluated. X19, audiologist and speech and language pathologist, testified regarding her credentials. The parents stipulated to Dr. X's CV and her qualifications. (Tr. 3137). Dr. X testified that she has used the Detroit Test of Learning Aptitude (DTLA) in testing children. She “probably uses some of its sub parts once a week, the DTLA-4.” (Tr. 3151). The DTLA-4 is the current version of the test. (Tr. 3157). Dr. X testified that she can not think of any ethical justification for using the first version of the DTLA in 2007 because it was developed in the late 60s or 1970 and demographics, language that is used in testing, and cultural sensitivity of items have changed over the years. (Tr. 3159).To the extent that the first version of the DTLA was used in 2007, the reliability of the findings is impacted. She explained: “We have far better measures of test standardization. We have far better ways of calculating standardized scores, and we have changes in demographics. Language changes over time, and if one is using a test, you have to have a sensitivity and specificity in various tests. And the higher the specificity and 19 The district called Dr. X to rebut the testimony of Dr. X regarding the appropriate use of the DTLA-1 when she tested XX. (Tr. 2951-2952). The parents objected to her testifying as an expert witness without providing a report. (Tr. 2953-2954).

The district was required to disclose Dr. X's CV and any documents upon which testimony relied. (Tr. 2957). sensitivity, the better the test measures the actual performance against a clinical calculation.”(Tr. 3160).

DISCUSSION

2008-2009 For the 2008-2009 school year, the XXXX Union Free School District Failed to Provide X.X a Free and Appropriate Public Education. Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 [1982]). ^[20] A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To determine whether a school district provided an appropriate education as required under IDEA, courts examine: 1) whether the school district complied with the procedural requirements of the IDEA; and, 2) whether the educational plan developed by the school was “reasonably calculated to confer education benefits to the child (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 (1982)). The importance of IDEA's procedural provisions was highlighted by the Rowley Court when it stated: “[t]he initial procedural inquiry is no mere formality”Id. “Adequate compliance with the procedures prescribed [by IDEA] would, in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 U.S. at 206). Here, the district failed to provide X.X with a FAPE by failing in its obligation to identify X.X as a student suspected of having a disability, failing to evaluate X.X as a consequence of that obligation or as a result of her parents' request for an evaluation, and failing to classify her as a student with a disability and develop an appropriate IEP. Failure to Evaluate at the Request of the Parents The XXX failed to evaluate X.X despite the parents numerous requests for evaluation. Under the IDEA, upon the request of a parent, a school district must, within sixty days, perform an evaluation of a child to determine if she is a child with a disability as defined by the statute (20 C.F.R. Sec. 300.301(b); 8 NYCRR 200.4(a)(1)(i)). The record supports the finding that despite numerous requests by the parents for the district to evaluate X.X to confirm her disability and need for special education services, made both in writing and orally, the district refused to acknowledge the parents' communications as requests and refused to evaluate X.X. After X.X's 504 plan was removed in October 2007, the parents met with Dr. X on November 13, 2007, in an effort to have the plan reinstated. The parents discussed X.X's history of receiving special education services (Tr. 1931-1932), and asked him to consider it as well as the psychological evaluations of Dr. X (Ex. J2A) and Dr. X (Ex. J2B), and X.X's IEP at the XX (Ex. P34-22121). On November 19, 2007, XX sent Dr. X a follow up letter requesting “an appeal” of the 504 Committee's decision (Ex. J2D). Additionally, XX wrote: “As we discussed, we believe that there is a substantial amount of information that supports our position that [X.X] needs at a minimum a 504 plan and, more likely, classification under the IDEA. We respectfully request that you conduct a review of the matter as soon as you are able and advise us of the status of reinstating her 504 plan” (Ex. J2D). Dr. X chose not to see this language as a request for an evaluation and did not inquire whether that was what the parents were requesting (Ex. J2E). While waiting for Dr. X's response, the parents retained a psychologist, Dr. X, to conduct an independent evaluation of X.X, and notified him to that effect in an e-mail dated January 5, 2008 (Ex. P5). XX let Dr. X know that she had left him telephone messages regarding the status of X.X's 504 plan as per her November 19, 2007, letter asking for an appeal of the decision to remove XX's 504 plan. She informed Dr. X that X.X's psychological evaluation was just started, but will not be completed until the end of February. She informed Dr. X that X.X “needs additional help in the resource room. How do we go about arranging for this? Do we ask for another CSE meeting?” (Ex. P5). Dr. X did not interpret this language as either a request for an evaluation or a referral to the CSE. Nor did he ask the Parents what they meant since they had not had a CSE review (Tr. 2287). On January 10, 2008, XX had a telephone conversation with Dr. X to “see if we can move on with X.'s situation”, to learn “where he stood in the review process or this appeal, and requested a CSE meeting” as per her prior e-mail (Tr. 1975). XX described to Dr. X the trouble X.X had doing her homework assignments, the difficulty X.X had expressing her thoughts verbally, the instances of bullying at school, and the need for the district to evaluate her (Tr. 1979-1980). Again Dr. X chose not to hear this as a request for an evaluation or as a referral (Tr. 1975-1976). In an email dated January 13, 2008, XX wrote to Dr. X and Mr. X regarding the upcoming ELA exams and stated her expectation that X.X would be given the 504 accommodation from the plan that was removed pending the outcome of the parents' appeal of that decision. She also wrote: “We are proceeding with testing and plan to pursue services for [X.X] pursuant to the IDEA” (Ex. P47). The parent did not get a response to this e-mail. (Tr. 2284, 2357). In a February 4, 2008, e-mail XX wrote to Dr. X and Mr. X to inform them that Dr. X's psychological evaluation and report should be finished by the second week of March. “I want to give you sufficient time to plan a CSE meeting after this date. I would appreciate some notice as I will be asking Dr. X to join us in this meeting” (Ex. P51). Again, Dr. X did not follow up on the parent's request. Finally, despite XX's letter and the numerous telephone calls and e-mails from XX, Dr. X responded three months later, in a letter dated February 13, 2008. After he had conducted a unilateral review of the documents and spoke to X.X's teachers, he informed informed the parents that he was upholding the decision of the 504 Committee and denying their appeal (Ex. J2E). He never considered their communications a request to do more than that, never asked their meaning, and never offered an evaluation process to them. At the June 12, 2008, 504 meeting requested by the parents through their attorney, X. X. , the parents again asked for an evaluation. The district sought clarification of which statute the parents were invoking and told them to put it in writing. Ms. X replied that she would get back to the district (Ex. J2K-3).

21 XX's XX IEP was submitted within Dr. X's file, but appears to be missing pages. Although the parents fired Ms. X a few weeks later, they subsequently made several attempts to set up a meeting with Dr. X, finally meeting on August 19, 2008 (Ex. P; Tr. 2180). In addition to their outstanding request for an evaluation made at the 504 meeting, the parents gave Dr. X the evaluation reports from Dr. X (Ex. J2F), Dr. X (Ex. J2I) and X X's letter (Ex. J2M). XX offered to bring in X.X for an evaluation (Tr. 2180)22. Dr. X did not follow up on the parents explicit request for an evaluation through their then attorney, Ms. X. He did not inform the parents to put their request for the evaluation in writing. Nothing in the record indicates that he directed them to the procedural safeguards at that time, or that the parents ever received the procedural safeguards prior to the 2010-2011 school year. Instead, he looked at the materials and told the parents that the district would not do an evaluation, and would not convene a CSE meeting or a 504 meeting (Tr. 463, 3087). XX asked Dr. X to take more time to reconsider his decision and telephoned him the following week as she said she would (Tr. 2180-2182). Dr. X called XX a “XXXX Mom” and the conversation ended shortly thereafter. X X, followed up with two telephone calls to Dr. X on September 4 and September 5, 2008, in a last effort to have X.X evaluated or services provided based on the materials the parents already had provided so that the parents could keep their daughter in the school district (Tr. 2626). Dr. X did not agree to evaluate X.X or to provide her with services. The district had an obligation to evaluate X.X based on the parents' many requests to have her evaluated. At a minimum it should have heeded the parents' numerous pleas for help and investigated what their requests meant. Despite Dr. X's representation that parents in the district have begun the CSE process with a conversation in his office and a handwritten statement: “I wish to refer my child for special education service” (Tr. ), he did not choose to view any of the parents' statements as such a request nor tell them just to put it on a piece of paper (except on the one occasion they were represented by an attorney who never again took part in their communications with Dr. X) , even when they were in his office as late as August 8, 2008. Given all of the above facts, the parents are found to have made a request for an evaluation for the 2008-2009 school year. The district denied X.X a FAPE for the 2008-2009 school year under both the IDEA and Section 504 by failing to evaluate her. The District Violated its Child Find Obligations Even absent a referral from the parents, the district had a duty to fulfill its child find obligations under the IDEA and Section 504. The "child find" provisions of the IDEA place an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state. (20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.125[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]; Application of a Child with a Disability, Appeal No. 06-073; Application of a Child with A Disability, Appeal No 04-054; Application of a Child with a Disability, Appeal No. 93-41). Both the Federal and State regulations make clear that a school district's obligation to evaluate extends to all children “suspected” of having a disability, not just to students who ultimately are determined by a CSE to be “a child with a disability.” See 34 C.F.R. Sec. 300.111 (c)(i); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 [N.D.N.Y. 2004]. The "child find" duty requires referral for an evaluation when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; see 8 NYCRR 200.2, 200.4). The provision applies to children who are suspected of being a student with a disability and in need of special education,

22 Dr. X testified, incidentally, that XX was not available for an evaluation after he received Dr. X's report (Tr. 3083). He received Dr. X's report at the August 8, 2008, meeting with the parents, XX was not accepted to X until at least August 27, 2008 (Tr. 339) and she did not go to X until on or about September 7, 2008 (Ex. P82-47). even though they are advancing from grade to grade (34 C.F.R. § 300.125[a][2][ii]; see 8 NYCRR 200.4).

X entered the District with a history of special education services, evaluations documenting her disabilities and an IEP from the XX in London. A teacher report from October of her fifth grade year reflects her difficulties and the support she needed to succeed (Ex. P2). With these supports and a 504 plan in place, her fifth grade report card reflects satisfactory or “good” grades. For sixth grade, the record contrasts the District view expressed by sixth grade teachers that X.X was completing work deserving of mostly As and Bs with the Parents' view that X.X struggled, required hours of support at home, and was using extra time and revisions, as given to all sixth graders, to get the high grades they were not always in agreement with. By the second half of the sixth grade year X.X had pulled out a significant portion of her eyebrow (Ex. P80), the parents had submitted Dr. X's report, and X.X's science grades were dropping. By the time the 504 team met in June of 2008 and certainly by the time the parents met with Dr. X in August 2008, the district had not only the parents' repeatedly voiced concerns, but Dr. X's speech evaluation, Dr. X's Neuropsychological Evaluation, Dr. X's Vision therapy evaluation, and a letter from a social worker expressing concern about X.X's communication skills. All of this information should have given rise to a suspicion that X.X was a child with a disability. If the district disputed the clinical findings they were given, they still had an obligation to conduct their own evaluations, convene a CSE, and make a recommendation regarding X.X's eligibility for services.

Accordingly, XXXX Union Free School District also violated X.X's right to a FAPE by failing to fulfill its child find obligations for the 2008-2009 school year.

XXX, the District of Residence, Had the Duty to Evaluate and Provide Services to X.X for the 20082009 School Year As discussed above, XXXX Union Free School District had the obligation to identify, evaluate and, if appropriate, provide services to X.X for the 2008-2009 school year. X.X was not removed from the school district until at least September 6, 200823, after the start of the 2008-2009 school year, well after the school district should have identified and evaluated her for the 2008-2009 school year.

Contrary to the District's argument that it was the school district of location that should have identified and evaluated X.X, XXX still had the legal obligation to address her special education needs. Until X.X's parents enrolled her at X, she was enrolled at the XXXX Middle School. Even after X.X left the district XXX was responsible.

Education Law § 3602 requires parents who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). The district of location's CSE must review the request for services and develop an individualized education service program (IESP) based upon the student's individual needs and "in the same manner and with the same contents" as an IEP (id. § 3602c[2][b][1]). In addition, the district of location's CSE "shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to

23 See footnote 13. other students with disabilities attending public or nonpublic schools located within the school district" Id.

VESID published a guidance memorandum—"Chapter 378 of the Laws of 2007—Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c"—to "inform school districts of their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary schools by their parents" (Parent Ex. Q at p. 1).

On the question of whether the district of residence must develop an IEP and conduct annual reviews for this IEP, VESID supplied the following guidance:

"If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private elementary or secondary school located in another LEA, the LEA where the child resides need not make FAPE available to the child." Therefore, if the parents make clear their intention to keep the child enrolled in the nonpublic elementary or secondary school, the district of residence need not develop or annually review an IEP for the student.

(Parent Ex. Q at p. 17).

For XXX to be absolved of its obligation to evaluate the student, determine the student's eligibility to receive special education programs and related services, and develop an IEP for the student in this case, the district of location would have had to determine “through the child find process . . . that the child needs special education and related services" and the parent would have made clear their intent to keep their child in the private school (Parent Ex. Q at p. 17; see Application of the Bd. of Educ., Appeal No. 10-049).

Here, X.X remained in the district of residence well past the time the district of residence should have evaluated her. Under the facts of this case, the district of residence remained responsible for evaluating the student, determining the student's eligibility to receive special education programs and related services, and developing an IEP for the 2008-2009 school year; the district's failure to develop an IEP consistent with its responsibilities denied the student a FAPE for the 2008-2009 school year (See Application of a Student with a Disability, Appeal No. 11-011).

For the 2008-2009 school year, the District Failed to Provide X.X with a FAPE by Failing to Classify her and Provide her with an Appropriate IEP or Special Education Services.

The preferable remedy where the District has failed to evaluate a student, conduct a proper CSE review, and make an eligibility determination, would be to remand the case to the CSE for those steps to be taken. However, the timing of this case precludes that from being an efficacious alternative. The evaluations obtained by the Parents, together with the entirety of the record can serve as a basis for making that determination retrospectively. The Parents obtained evaluations that included a variety of tools and strategies to assess whether X.X had a learning disability.

For the 2008-2009 school year, the information available, in addition to X.X's teachers' reports and the Parents' reports, as elaborated upon in their testimony (as described), and the score results for the State math and ELA tests, included: 1) Dr. X's Psychological Report, May 2004; (Ex. J2A); 2) Dr. X's Psychoeducational Evaluation, June 14, 2006, (Ex. J2B); 3) Dr. X's letter, October 26, 2006, (Ex. P45); 4) Dr. X's Speech and Language Assessment (Ex. J2G); 5) Dr. X's Neuropsychological Evaluation, February 2008 (Ex. J2F); 6) Dr. X's report and letter dated May 8, and May 11, 2008, respectively (Ex. J2I); and, 7) the letter from X X, therapist, July 14, 2008 (Ex. J2M).

As described in more detail above, all of the written evaluations, reports and letters documented X.X's educational related weaknesses. Dr. X found X.X's cognitive abilities to be in the average range. Areas identified as presenting issues or difficulty included “tasks that involved auditory sequential memory and working memory”, “retrieval of information presented auditorily”, “phonological processing, orthographic processing for sentences and parts of words, and aspects of rapid naming”, “orthographic processing as well as grapho-motor processing of more lengthy text materials...” (Ex. J2A; supra). Dr. X concluded that X.X “evinces problems that involve both Dyslexia and Dysgraphia” as well as being “at risk” for combined type. (Ex. J2A-13). Dr. X reported improvement in all areas noting X.X's continued need for tutorial support for literacy skills, specifically reading and written expression.” (Ex. J2B-5). She also noted X.X's medication regimen “for diagnosed attentional weaknesses.” (Ex. J2B-1). Dr. X's letter confirmed X.X's diagnosis of ADD and her prescription. (Ex. P45). Dr. X reported “evidence of auditory processing and sequencing difficulties, along with some word finding difficulty” and “seems to exhibit a speech and language dysfunction, affecting her phonemic and syntactic levels of language, including her auditory processing and sequencing of linguistic data...”(Ex. J2G-2). Dr. X diagnosed X.X with Expressive Language Disorder, predominantly Inattentive type, Reading Disorder, Disorder of Written Expression, and Developmental Coordination Disorder. She found variability in X.X's scores and concluded that X.X “continues to exhibit considerable difficulties in areas of attention/executive functioning, as well as language functioning. These difficulties are having a significant impact on her academic achievement, and they also appear to be having an increasing impact on her social/emotional functioning.” (Ex. J2F). Dr. X found that X.X presented with “Convergence Excess” and “Oculomotor Dysfunction”, both which can affect “near point work” such as reading and writing. (Ex. J2I, Ex. J2J). X X noted X.X's “difficult time expressing herself verbally as well as a delayed processing of auditory instructions” and inadequate communication skills. (Ex. J2M). A number of the evaluators noted that X.X's speech was difficult to understand, reported that she frequently asked for directions to be repeated, and presented with a flat affect and anxiety. XX’s history of special educational needs, her need for medication to address attention issues, the tutoring she received, all of the above reports, the parents' testimony, the documents that reflect the trouble X.X was having with the work at home and the time the parents devoted to helping her, and the testimony and photograph reflecting that X.X was manifesting her anxiety, in part, by pulling out her eyebrows, all support the finding that X.X should have been classified as a student with a disability and provided services for the 2008-2009 school year. Even the district acknowledges, finally, in Dr. X's letter to the parents dated October 20, 2008, that X.X needed help with writing. (Ex. J2N-3). Her good grades were based on the teachers' subjective methods of grading and included the opportunity to revise work, retake tests, and use extra time as well as the considerable support she received at home. Against the weight of all of the evidence in the record, those good grades along with the teachers' testimony and the mere report of scores on the State math and ELA assessments that she was meeting grade level expectations, do not fulfill the district's burden to prove that it fulfilled its obligations to the student under the IDEA or Section 504. While the fact that X.X was classified and given an IEP for the 2010-2011 school year can not be used to prove that she should have been classified for the 2008-2009 school year, it does give weight and credence to the evidence that supports that finding. (Ex. P79). It also must be noted that Dr. X's evaluation which was relied upon to develop the 2010-2011 IEP reported the same diagnoses reached by Dr. X. (Ex. J2P-35). According to the evidence above X.X certainly presented with both a language based disability which negatively impacted on her ability to read, write, spell, listen or think. She also had attention and organization issues that negatively affected her ability to produce work. X.X met the criteria for a number of classifications such as learning disability. (8 NYCRR 200.1(zz)(6); 8 NYCRR 200.4(j)(3) and (4)(i)(b)) or other health impaired (8 NYCRR 200.1 (zz)(10)). The District's failure to classify her or provide her with services for the 2008-2009 school year was a denial of FAPE.

Having found that the District deprived X.X of a FAPE for the 2008-2009 school year, a determination must be made as to whether the Parent's choice of private placement was appropriate. The X School was an Appropriate Placement for X.X for the 2008-2009 School Year. The parents bear the burden of proving that The X School is an appropriate program for X.X. See Schaffer ex rel. v. Weast, 546 U.S.49, 58, 126 S.Ct. 528, 163 L. Ed. 2D 387 (2005); N.Y. Educ. L. 4404(1)(c). To meet this burden, the parents must demonstrate that the educational services provided by The X School address X.X's identified special education needs. The core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” ( Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006) citing Rowley, 458 U.S. at 207). Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo,489 F. 3d at 115. The record supports the finding that The X School provided an appropriate program and placement for X.X to receive educational benefit.

The standards for determining whether a private school placement is appropriate under the IDEA are similar, but not identical to evaluating the appropriateness of the DOE's proposed placement. See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010). To be eligible for reimbursement, the parent's chosen placement is not required to meet federal or state requirements, but rather a less stringent standard. See Carter, 510 U.S. at 14; Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F. 3d 356, 364 [2d Cir. 2006][quoting Rowley, 458 U.S. at 207 and identifying exceptions]).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The totality of the circumstances reflected in the record demonstrates that The X School provides X.X with educational instruction designed to address her needs in such a manner as to allow her to derive benefit from her instruction. X provides an intensive Orton-Gillingham based approach to teaching students with languagebased disabilities, including dyslexia, and as such X.X matches the profile of the students the school is designed to serve (Tr. 284-285, Ex. J). X.X's parents researched the Orton-Gillingham methodology and X prior to considering whether it would be an appropriate placement for X.X and concluded that it was. In addition to the Orton-Gillingham approach to language used in all of the core subject areas, X.X had a one-toone “Language Training Teacher” every day to address X.X's specific reading, spelling, writing and language deficits. (Tr.284-295, 338, 1584-1591; Ex. P3). The reports of the Language Training Teacher elaborate how X.X's individual strengths and weaknesses in writing, spelling and reading were identified and how they were addressed through writing assignments and readings. To address the student's spelling weaknesses, the tutor indicated that she developed spelling packs and a chart for the student and the student would practice writing the words and using them in sentences. (Ex. P3-10). Other reports detail how assistive technology enables X.X to support her needs in writing and organization, and how some of her teachers have incorporated her use of the specific programs to better her efforts in their classes. X.X's core subjects have no more than ten students, so that the teachers easily were able to redirect or prompt her when she was found not to be focused or on task. (Tr. 294; Ex. P3). X.X is grouped with students with similar needs in classes where an interactive and multi-sensory approach is used to adapt to each student's learning needs. (Tr. 294).

The school does not offer speech therapy, but since its “foremost” focus is on “remediation of language skills”, primarily through the Language Training tutorial, X.X's pragmatic language needs were appropriately addressed (Ex. J14). Her teachers, all who have received 70 hours of Orton Gillingham training, regularly noted how they encouraged her active participation in class as well (Tr. 287-288). While X.X was more reticent during some terms than others, X.X continually made gains in her ability to communicate in her classes. While X.X does not receive counseling at X, Dr. X testified that the school also has an emphasis on developing a student's sense of self-esteem through their work and provides a lot of support through the small sized classes. The teachers, through the progress reports, frequently noted X.X's increasing confidence (Tr. 285-286; Ex. P3). Dr. X shared the view that through becoming a more confident learner, X.X's emotional fragility would be addressed and thought that X was an appropriate placement for her for the 2008-2009 school year. (Tr. 173). While X.X's emotional state was consistently raised as an issue during the 2007-2008 school year, the record supports the finding that it was closely tied to her experience at XMS. In fact, her IEP for 2010-2011 provides her with counseling to assist with her transition back into the district where it is recognized she had a difficult time socially. (Ex. P78; P79).

As stated above, the parents' placement is not required to maximize the studetn's potential, Frank G., nor does it have to be perfect. Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). I find that the small size of the classes, the language based nature of the school, the intensive one on one language tutorial, and the support of the faculty and staff as described by Dr. X, the parents and the progress reports provide X.X with the necessary support for her to receive educational benefit from X without receiving direct speech therapy or counseling. Moreover, X is providing the types of remediation and instruction recommended by Dr. X and Dr. X with respect to X.X's predominant disabilities.

In addition to the progress reports describing X.X's competence in each class, incorporation of learned strategies, and progress in areas of difficulty, standardized test results showed that X.X improved over the course of the year in most areas (Tr. 294-295, 298-299, P3-33). Her parents also observed progress in her areas of weakness, decoding, comprehension and writing, and more independence in her ability to do her homework when she was at home for the weekends.

The district also argues that X does not provide the student with special education services in the LRE. While parents are not held as strictly to the standard of placement in the LRE as school districts, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 138 [S.D.N.Y. 2006]; Pinn v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 482 [S.D.N.Y. 2007]). Here, the fact that X exclusively educates students with disabilities is not a bar to reimbursement. The rulings of both Burlington and Carter regarding the right of parental placement would be rendered meaningless if courts were to routinely find that parental placements in special education private schools automatically violated the IDEA's mainstreaming requirement or parents were required to keep their child in a regular education setting when they believed it was inappropriate to meet the child's needs. As described above, X's program squarely meets X.X's specific special education needs as identified in the record and was reasonably calculated by the parents as an educational setting for X.X. As for the residential component of the program, X.X's parents, Dr. X and Dr. X all testified that it was appropriate to meet X.X's needs and benefited her in that it provided support through the one and a half to two hour study hall in the evenings and the availability of teachers and other support staff to assist her with homework and assignments. Given the hours spent with X.X on homework by the parents or tutors through her sixth grade year, this level of support was of great benefit to X.X who increased her ability to work independently as reflected during the week at school and when she returned home each weekend. Additionally, the record establishes that the commute of approximately 150 miles to X from X.X's home would be between one and a half to two hours each way depending on traffic. (Tr. 2439). As testified to by the parents and Dr. X, a three to four hour commute per day for a student of X.X's age and with her disabilities would be detrimental. Boarding as a five day student at X was the only option that made X a placement that was reasonably calculated to provide her with educational benefit. While a residential placement is one of the most restrictive educational placements available for a student, the parents met their burden of proving that X “provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). The last and critical consideration regarding the parents' placement, when viewing the totality of the circumstances, is the fact that the parents spent the entire previous school year up until the beginning of the 2008-2009 school year repeatedly trying to obtain supports and services for their daughter in the school district. The record shows that the parents wanted to keep X.X in the school district and went to great lengths to secure help for her. The district would not even evaluate her and took away the few services it had provided. As found above, there is no doubt that X.X was disabled yet the district failed in all of its obligations toward her. The parents credibly testified and presented corroborating e-mails showing their efforts to find other potentially appropriate placements closer to home. At the end of August, there were no available seats for X.X in these closer schools leaving the parents the choice of returning X.X to the district with no supports or sending her to the one alternative, reasonably calculated to provide X.X with educational benefit, they were able to find. The school was close enough to the parents' home that she was able to come home each weekend and attended X only as a five day boarding student. Under the totality of the circumstances, choosing to send X.X to X was an appropriate choice. In the recent case, In the Matter of S.H. v. The New York City Dep't of Educ., 2011 WL 609885 (S.D.N.Y. February 18, 2011), the Southern District upheld the State Review Officer's (“SRO”) decision denying tuition reimbursement to the Landmark School, a residential school for learning disabled students in Massachusetts. The Court concurred with the Impartial Hearing Officer and SRO that the parent did not meet the burden of demonstrating that the unilateral placement was appropriate because the school was overly restrictive. The decision was based largely on the facts of the student's demonstrated academic success (performing at or above grade level, taking the most challenging math and science courses, performing satisfactorily and in some cases exceptionally well in his classes, functioning independently in a number of his classes), and the progress in his emotional and psychological development. Additionally, according to the Court, the parent did not meet her burden to demonstrate that her son needed such a program in order to receive educational benefits, but instead found at best that it was advantageous and “perhaps even necessary for J.G. to maximize his educational potential” (id. at 17). The well established standard parents must meet to prove the appropriateness of their placement is that “the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). The concept of the LRE falls under this analysis as well. In the instant case, the record establishes that X.X's level of disability was much greater than that established for the student in S.H. . While she adjusted to X and progressed in her classes the very detailed progress reports reflected some academic achievements but not comparable academic success. X.X needed instruction and remediation in her areas of deficit in a language based program like that offered at X. Here, too, the school was not out-of-state and allowed X.X to return home on the weekends. The parents hardly can be found to have sent X.X to X to maximize her potential. Instead, for all of the reasons stated above, the finding is that under the totality of the circumstances they sent her to an educational placement reasonably calculated to provide her with educational benefit. The State Review Officer has upheld parental placement in a boarding school where the record supports the finding, as here, that the program otherwise is appropriate, the boarding component provided benefit such as meeting a demonstrated need for homework support or the parents have looked for alternatives closer to home and none were available.( Application of the Board of Educ. Appeal No. 01-059; Application of a Child with a Disability 01-054; Application of the Board of Education Appeal No. 00-026. As each of these cases reinforces, although the LRE requirement (20 U.S.C. § 1412[a][5]) may apply to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2nd Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]). The record supports the finding that X provided X.X with an appropriate education. Having found that the parents met their burden to prove that X was an appropriate placement, the equities of the case must be weighed.

Equitable Considerations Weigh in Favor of Tuition Reimbursement to the Parents for the 2008-2009 School Year.

Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parents' claims. “[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the district throughout the process to ensure that their child receives a FAPE.” (id. quoting Bettinger v. New York Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560, *6 (S.D.N.Y. Nov. 20, 2007)).

The record establishes that the parents fully cooperated with the district in this case. They participated in all meetings initiated by the district and offered the district many opportunities to evaluate and consider the needs of their daughter. With the exception of a psychiatrist's letter which they felt was too personal, they provided all evaluations and documentation to the district in sufficient time for the district to take action and the district flatly refused. Only on the advice and actions of their attorney at the time, did the parents postpone turning over evaluations they had in their possession, namely Dr. X's and Dr. X's evaluations. Once their relationship with that attorney appeared to be unproductive and they discharged her, the parents promptly contacted the district to provide those evaluations and discuss keeping their daughter in the XMS with services. Dr. X's response to the additional documents remained unchanged. He unilaterally determined that she did not even qualify for an evaluation.

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

The parents repeatedly informed the District of their disagreement with the district's actions and could be found to have begged for services and the opportunity to keep X.X in the district. The district had more than ample notice of their dissatisfaction and many opportunities over the course of months to address the parents' concerns. Additionally, the district in fact did have notice that the parents intended to remove X.X from the district. The parents' testimony that X X informed Dr. X that the district's refusal to evaluate X.X or provide her with services was causing the parents to send her to X and that the parents would hold the district responsible is credited. The testimony is corroborated by Dr. X's e-mail to X X on September 8, 2009, telling her that he had been notified by the parents of X.X's removal from the district. (Ex. P82). Under the circumstances of this case, the purpose of the notification provisions, which permit and do not mandate denial or reduction of reimbursement, has been met manyfold. For the 2008-2009 school year the equities weigh heavily in favor of the parents and reimbursement for the tuition at The X School is awarded.

2009-2010 For the 2009-2010 school year, the XXXX Union Free School District Failed to Provide X.X a Free and Appropriate Public Education. XXX Failed to Fulfill its Child Find Obligation for the 2009-2010 school year. Just as for the 2008-2009 school year, the XXX failed to provide X.X with a free appropriate public education for the 2009-2010 school year because it had the duty to fulfill its child find obligations for X.X and it failed to identify, evaluate, or classify her. (20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.125[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]; Application of a Child with a Disability, Appeal No. 06-073; Application of a Child with A Disability, Appeal No 04-054; Application of a Child with a Disability, Appeal No. 93-41). As a result, it did not provide her with the services she needed. XXX still had the child find obligations for X.X because, the district of location had not identified and evaluated X.X, nor had the parent made clear their intent to keep her in the private school in the district of location prior to June 1, 2009. Under the facts of this case, the district of residence remained responsible for evaluating the student, determining the student's eligibility to receive special education programs and related services, and developing an IEP for the 2009-2010 school year; under the child find provisions of the IDEA, the district's failure to develop an IEP consistent with its responsibilities denied the student a FAPE for the 2009-2010 school year (See Application of a Student with a Disability, Appeal No. 11-011).

XXX Failed to Classify X.X or Provide Her with an Appropriate Program for the 2009-2010 School Year The findings with respect to X.X being a student with a disability in the 2008-2009 school year apply to the 2009-2010 school year as well. The findings are further supported by the testing done at X and the neuropsychological report conducted by Dr. X X, diagnosing X.X with Expressive Language Disorder, Attention Deficit Disorder, Inattentive Type, Reading Disorder, Disorder of Written Expression, and Developmental Coordination Disorder (Dysgraphia) (Ex. J2P-35). Dr. X also noted low average skills in visual processing speed. Dr. X reported that X.X has at least average intelligence and that she presents with a language based learning disability and dysgraphia. Dr. X confirmed the diagnosis of . She also was concerned with X.X's flat affect and anxiety. These findings corroborated those already found to exist by Dr.

X. Again, the district relied, in part, on Dr. X's findings to classify X.X for the 2010-2011 school year, lending weight to the validity of her report, and in turn, Dr. X's report. Again, X.X's disabilities qualified her for a classification of or other . The district's failure to classify X.X or provide her with an appropriate program for the 2009-2010 school year was a denial of FAPE. Since the District deprived X.X of a FAPE for the 2009-2010 school year, the analysis proceeds to whether or not the Parents' placement was appropriate for the 2009-2010 school year. The X School was an Appropriate Placement for the 2009-2010 School Year The record establishes that The X School continued to be reasonably calculated to provide X.X with educational benefit for the 2009-2010 school year. While X.X improved in some areas, her needs remained very similar. The profile of the school and the program it offered to X.X also remained the same. Dr. X reiterated similar reasons as for the previous year and added that X.X participated more. XX’s Language Training Teacher noted in the first semester that she again provided X.X with an individualized spell pack to help address her general foundation in phonics as well as spelling. She had reading assignments tailored to her needs. X.X benefited from assistive technology to continue supporting her in writing. All of the teachers encourage her active participation in the class. Mid-year reports state that X.X is able to complete her math in half the time. In addition she is reported to assist her classmates with their work. The Language Training Teacher report reflects that X.X was working on more extensive and complex writing assignments with assistive technology to support her particular needs. She took great advantage of evening study hall, receiving “top marks”. (Ex. P3-42). Most of the teachers comment on individual areas they continue to address with X.X and her continued improvement. X.X also appeared to be more outgoing and communicative with teachers remarking on her good sense of humor. (Ex. P3- 44; P3-48). XX’s needs individual educational needs were met by the program at X. Just as in the previous year, the fact that she did not receive direct speech therapy or counseling does not render X inappropriate to meet her needs. Similarly, she remained a five day boarding student, gaining increased independence through the study hall and evening support provided by the teachers and staff. The parents and psychologists continued to hold the view that the commute would be too long and negatively impact on the student. The district did not rebut this testimony. For the 2009-2010 school year, the parents established that X provided educational instruction specially designed to meet the unique needs of their daughter, supported by such services as were necessary to permit her to benefit from instruction.” (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). The Equities Contrary to the district's claim that the parents were required to give notice of their intention to keep X.X at X, the burden was on the district to fulfill its child find obligations and the district knew or should have known that X.X had not re-enrolled. Additionally, the IDEA regulation at 34 CFR 300.148(d) states that reimbursement may be reduced or denied if the parents failed to inform the IEP team that they were rejecting the placement proposed by the district and that they were planning on placing their child in a private school at public expense or did not notify the district of that information, in writing, at least ten business days prior to removal. “Thus removal, not enrollment, establishes the regulatory benchmark when determining compliance with the parental notice provision.” See Letter to X, OSEP, 55IDELR 293. Parents who seek tuition reimbursement are not required to notify a district each year they plan to continue a student's private school enrollment after the student's initial removal from public school. (Id.). Impartial hearing officers, like the courts, have broad equitable powers to determine equitable relief (20 U.S.C. § 1412(a)(10)(C)(ii)). Moreover, the regulations requiring parental notice to the district are discretionary, not mandatory. Regardless of whether notice has been given, each case requires a balancing of the equities. “Moreover, because the authority to grant reimbursement is discretionary, ‘equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.’” Frank G., 459 F.3d at 363-64 (quoting Burlington, 471 U.S. at 374; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); 20 U.S.C. § 1412(a)(10)(C)(iii)(III)). For the 2009-2010 school year, it is true that the district failed in its obligations toward the student. However, for the 2009-2010 school year the parents also did nothing to foster the cooperative process of developing an appropriate educational plan for their daughter that is contemplated by the IDEA. By their own testimony, they did not expect any more from the district than the results of their past experiences and X.X was doing well, so they did not contact the district. Nor did they provide the district with X.X's evaluations or progress reports from X from the 2008-2009 school year or Dr. X's report until this due process hearing. Additionally, there is nothing in the record to indicate that they tried to find an alternative placement closer to home. For all of these reasons, the parents tuition award is reduced by the cost of the boarding component of the program.^[24]

ORDER

1. The XXXX Union Free school District denied a Free Appropriate Public Education to X.X for the 2008- 2009 and 2009-2010 school years.

2. The X School was an appropriate placement for X.X for the 2008-2009 and 2009-2010 school years.

3. For the 2008-2009 school year, the XXXX Union Fee School District shall pay X.X's tuition at The X School, in full.

4. For the 2009-2010 school year the XXXX Union Free School District shall pay that portion of X.X's tuition at The X School that covers the day program and not the boarding component.

5. The parents shall provide the XXX an affidavit from The X School specifying what the costs were for the 2008-2009 school year, including any reductions for awards or scholarships, and proof of payment.

6. For the 2009-2010 school year, the same or a separate affidavit, shall specify the costs incurred for the day program and any reductions for awards or scholarships. The parents also shall provide proof of payment.

7. Within fifteen days of receipt of the affidavit(s) and proof of payment the XXX shall make payment to the parents.

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the XXXX Union Free School District has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions for filing an appeal and forms can be found on the Office of State Review website: www.sro.nysed.gov/appeals.htm. XX and X.X v. XXXX Union Free School District

DOCUMENTATION ENTERED INTO RECORD MAXXH 26, 2010

J1 Letter from X X, Esq. to District Clerk with Proof of Service Joint

2/4/2010, 3 pp.

J2 Due Process Complaint Notice without Exhibits Joint

2/4/2010, 35 pp.

J2A Report by Dr. X- The Joint

5/24/2004, 14 pp.

J2B Psychoeducational Re-Evaluation Report by Dr. X- The

6/14/2006, 5 pp.

J2C XXXX Union Free School District Section 504 Committee Information Joint

10/30/2007, 1 p.

J2D Letter from X.X. To M. X Joint

11/19/2007, 1 p.

J2E Letter from M. X to X.X. Joint

2/11/2008, 2 pp.

J2F l Evaluation by Dr. X Joint

1-2/2008, 25 pp.

J2G Evaluation by Dr. X Joint

4/2008, 3 pp.

J2H Brief Evaluation by Dr. X Joint

4/28/2008, 2 pp.

J2I Letter from X. X to X.X. Joint

5/8/2008, 2 pp.

J2J Letter from X. X to Whom it May Concern Joint

5/11/2008, 1 p.

J2K Letter from M. X to X.X.and X.X., enclosing 504 Committee Joint

Meeting Information (dated October 30, 2007)

6/24/2008, 3 pp.

J2L Letter from L. X to M. X Joint

7/24/2008, 2 pp.

J2M Letter from X. X Joint

7/14/2008, 1p.

J2N Letter from M. X to X.X. and X.X. Joint

10/20/2008, 3 pp.

J2O Invoices to X.X. and X.X. from X School for 2008-2009 Joint

2009-2010

1/14/2010, 1/7/2010, 2 pp.

J2P Dr. X Evaluation Joint

1/31/2010, 60 pp.

J3 X Letter in Response to Impartial Hearing Demand Joint

2/5/2010, 1 p.

J4 Petitioners' Reply to Respondents' Answer to Impartial Hearing Demand Joint

2/12/2010, 2 pp.

J5 Respondents' Sur-Reply Joint

2/24/2010, 2 pp.

J6 Section 504 Accommodation Plan 2006-2007 Joint

10/31/2006, 2 pp.

J7 504 Committee Recommendation for Services and Consent Joint

11/2/2006, 2 pp.

J8 Signed XXXX Union Free School District Section 504 Committee Joint

Consent for Accommodation

11/5/2006, 1 p.

J9 Letter from M. X to X.X. and X.X. Joint

2/11/2008, 2 pp.

J10 Letter from M. X to X.X. and X.X. Joint

5/27/2008, 1 p.

J11 504 Committee Recommendation for Ineligibility dated 06/24/08 with Joint

Committee Summary Information

6/24/2008, 3 pp.

J12 Letter from M. X to X.X. and X.X. Section 504 Committee Joint

Recommendation for Declassification

11/20/2007, 1 p.

J13 Letter from the X School Joint

10,11/2008, 10 pp.

J14 X Mission Statement Joint

3/25/2010, 1 p.

J15 XXXX Union Free School District Mission Statement Joint

2/12/2010, 1 p.

P2 X X.X 504 Report for fifth grade Parent

10/31/2006, 1 p.

DOCUMENTATION ENTERED INTO RECORD APRIL 23, 2010

P3 Documents received from The X School, Dr. X's file Parent

2009-2010, 68 pp.

P4 X X.X Evaluation Ability Achievement Discrepancy Parent

Analysis

11/23/2009, 4 pp.

P5 E-mail X.X to Dr. X Parent

1/5/2008, 1 p.

P6 X X email from X X Parent

6/3/2008, 1 p.

DOCUMENTATION ENTERED INTO RECORD 5/6, 2010

D1 Handwritten Notes from 504 meeting District

10/30/2007, 3 pp.

D2 XXXX Middle School Student Progress Report with Handwritten District

Notes

3/22/2010, 9 pp.

D3 XXXX Middle School 2007-2008 Report Card Grade 6 District

Undated, 1 p.

D4 NYSTP 2008 Mathematics Test Results District

3/2008, 2 pp.

D5 NYSTP 2008 ELA Test Results District

1/2008, 2 pp.

DOCUMENTATION ENTERED INTO RECORD MAY 17, 2010

P9 Letter from XXXX UFSD CSE Notice of Section 504 Committee Parent

Meeting

9/26/2007, 1 p.

P10 Letter from XXXX UFSD CSE Notices of Section 504 Committee Parent

Meeting Rescheduled

10/23/2007, 1 p.

P11 Email from X.X to Ms. X X Parent

2/5/2008, 1 p.

P12 Email from X.X to X X with reply Parent

10/16/2007, 1 p.

P13 Email chain from/to X.X and X X Parent

6/14/2005-6/24/2008, 2 pp.

P14 Scientists at Work test Parent

Undated, 2 pp.

P16 Owl Pellet Investigations test Parent

Undated, 2 pp.

P17 XXXX Middle School Student Progress Report Parent

3/24/2010, 5 pp.

D6 Sixth Grade Theme essay Parent

6/4/2008, 14 pp.

DOCUMENTATION ENTERED INTO RECORD MAY 25, 2010

P19 Math quiz chapter 5 Parent

3/28/2008, 2 pp.

P21 Email from X.X to Ms. X and reply Parent

1/28/2008, 1/29/2008, 1 p.

P22 Proportions and Customary Measurement practice C Parent

Undated, 3 pp.

P23 Email from X.X to Ms. X and reply Parent

11/2/2007, 1 p.

P24 Email chain to/from X.X and Ms. X Parent

10/15/2006, 10/16/2006, 2 pp.

P25 Email chain to/from X.X and Ms. X Parent

11/13/2006, 2 pp.

P26 Email chain to/from X.X and Ms. X cc D'Amore Parent

11/21/2006, 11/28/2006, 3 pp.

P27 Email chain to/from X.X and Ms. X Parent

1/5/2007, 3 pp.

P28 Email chain to/from X.X and Ms. X Parent

3/2/2007, 3 pp.

P29 Email chain to/from X.X and Ms. X Parent

11/2/2006, 2 pp.

P30 Email chain to/from X.X and Ms. X Parent

12/1/2006, 3 pp.

P31 Email chain from X.X to Ms. X Parent

12/14/2006, 1 p.

DOCUMENTATION ENTERED INTO RECORD MAY 26, 2010

D7 DTLA-4 Examiner's Manual District

4th Edition, 10 pp.

P15 Newton's Second Law Homework Parent

Undated, 2 pp.

P32 Dr. X Expert File Parent

Various Dates, 156 pp.

DOCUMENTATION ENTERED INTO RECORD JUNE 1, 2010

P33 Dr. X's Resume Parent

5/24/2010, 3 pp.

P34 Dr. X's Expert File Parent

Various Dates, 443 pp.

P35 Dr. X's Conclusions of Evaluations Parent

Undated, 3 pp.

DOCUMENTATION ENTERED INTO RECORD JULY 8, 2010

P36 Dr. X's Expert File Parent

Various Dates, 241 pp.

P37 Dr. X's Curriculum Vitae Parent

Undated, 3 pp.

P38 Dr. X Fax re FSIQ and WIAT-II Parent

5/18/2010, 5 pp.

D9 Wiat-II Examiners manual with excerpt from pages 157 and 158 District

Undated, 3 pp.

D10 Ability- Achievement Discrepancy analysis District

11/23/2009, 1 p.

IHO I Spoliation affidavit executed by X.X Impartial Hearing

7/09/10, 44 pp. Officer

DOCUMENTATION ENTERED INTO RECORD JULY 29, 2010

P8 Letter from X.X to Ms. X Parent

10/30/2007, 1 p.

P18 What Grades Really Mean Parent

Undated, 1 p.

P39 Email from X X to X.X Parent

6/17/2007, 1 p.

P42 XXXX Parents Guide to the Middle School Parent

Undated, 42 pp.

P45 Letter from Dr. X at Parent

10/26/2006, 1 p.

P46 Email from X.X to Dr. X Parent

11/26/2007, 1 p.

P47 Email from X.X to Dr. X and Mr .X Parent

1/13/2008, 1 p.

P48 Email from Ms. X X to X.X Parent

12/7/2007, 1 p.

P49 Email from X.X to Mr. X X and Ms. X X Parent

1/4/2008, 2 pp.

IHO II Letter from Ms. X.X to PDH Impartial Hearing

7/22/2010, 8 pp. Officer

IHO V Letter from Hon. Flame to Counselors Impartial Hearing

3/22/2010. 25 pp. Officer

DOCUMENTATION ENTERED INTO RECORD JULY 30, 2010

P50 Hand-written notes taken during meeting with Dr. X Parent

1/10/2008, 1 p.

P51 Email from X.X to Dr. X and Mr. X Parent

2/4/2008, 1 p.

P52 Email from X.X to Mr. X X Parent

2/5/2008, 1 p.

P53 Email from X.X to Mr. X X Parent

4/14/2008, 1 p.

P54 Email from X.X to Mr. X X Parent

5/12/2008, 1 p.

P55 Assistant Principal Discipline Referral with actions taken noted Parent

4/3/2008, 1 p.

P56 Science Class, Cycles in Nature Exam, extra time note written on the Parent top of the exam

3/26/2008, 5 pp.

P57 Matching Buildings worksheets, with note written that X.X had to redo the Parent sheets

4/30/2008, 3 pp.

P58 Homework assignment with hand written notes from the teacher on the Parent assignment

Undated, 1 p.

P59 Science Class, Forces Exam with note for extra time written on the top of Parent the exam

5/22/2008, 7 pp.

P60 Email from X.X to Ms. X X Parent

5/27/2008, 1 p.

P61 Letter from X.X to Ms. X X, with Ms. X X emailed Parent

6/17/2008, 2 pp.

P62 Public Speaking Grade 6 Class, Rubrics, and outlines for several of X.X's Parent presentations with grades

Undated, 3 pp.

P63 Email chain between X.X and Mr. X X Parent

6/19/2008, 3 pp.

P64 Social Studies, Roman Essay with Rome Final Exam attached Parent

6/10/2008, 10 pp.

P65 Email Chain between X.X and Ms. X Parent

6/19/2008, 1 p.

P66 Email from X.X to X.X Parent

6/18/2008, 1 p.

DOCUMENTATION ENTERED INTO RECORD AUGUST 4. 2010

P67 Vocabulary Test- Homophones Parent

Undated, 1 p.

P68 Email Chain between X.X and Michael X Parent

7/10/2008, 1 p.

P69 Handwritten notes and questions Parent

6/12/2008, 1 p.

P70 Letter from X.X to Ms. X Parent

7/15/2008, 1 p.

P71 Email from X.X to doctorgia Parent

8/18/2008, 1 p.

P72 Email from X.X to X.X Parent

8/21/2008, 1 p.

P74 Information re X School Parent

Undated, 1 p.

P75 Letter from X.X to X Parent

4/11/2010, 1 p.

P76 Dept of Special Education, Evaluation by X Parent

6/4/2010, 3 pp.

P77 Educational Evaluation by X X Parent

6/7/2010, 3 pp.

P78 Addendum by X X Parent

9/12/95, 3 pp.

P79 XXX IEP 2010-2011 school year Parent

6/22/2010, 7 pp.

D11 Psychoeducational Reevaluation Report Parent

5/15/2006, 5 pp.

DOCUMENTATION ENTERED INTO RECORD SEPTEMBER 16, 2010

P81 Tuition check to X School for X.X Parent

9/9/2008, 9/3/2008, 2 pp.

DOCUMENTATION ENTERED INTO RECORD OCTOBER 8, 2010

J16 Dr. X, Ph.D. Curriculum Vitae Joint

Various Dates, 65 pp.

P80 X Eyebrow Picture Parent

9/13/2010, 1 p.

P82 District emails Parent

11/2007- 6/2010, 54 pp.

P84 School District Records policy, with blank Transfer of Records form Parent

11/21/94, 2 pp.

IHO VI Emails between Hon. Flame and Counselors during March, Impartial Hearing May, July, and August, 2010 Officer

2010, 39 pp.

IHO VII Letter from Hon. Flame to P. X and S. X.X Impartial Hearing

3/22/10, 3 pp. Officer

DOCUMENTATION MARKED FOR IDENTIFICATION OCTOBER 8, 2010

P73 Dr. X Educational Observation and Recommendations Parent

03/10/10, 3/23/10, 13 pp.

DOCUMENTS STIPULATED BY PARTIES, AS ENTERED INTO EVIDENCE, JUNE 27, 2011

P1 Email between Math Teacher Ms. X and X.X dated Parent

11/02/07, Email between Science Teacher Ms. X X regarding extra time for test dated 06/16/08

11/2/07, 6/16/08, 2 pp.

P7 X and X memo from X X Parent

6/4/08, 1 p.

P20 Spiral Notebook quiz chapter 3 Parent

2/5/08

P20A Spiral Notebook quiz chapter 3 Parent

Undated, 10 pp.

P40 Letter from X.X to Mr. X Parent

10/11/07, 1 p.

P43 Email chain between X.X and Mr. X X Parent

10/25/07, 2 pp.

IHO III Letter from Ms. X.X to X Impartial Hearing

2/04/10, 4 pp. Officer

IHO IV Fax Cover sent to Hon. Lana Flame with Subpoena Impartial Hearing

Deuces Tecum, 3/16/10, 2 pp. Officer

Footnotes

[1] This decision is rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. Sec. 1400, et seq.).and the regulations promulgated under it, Section 504 of the Rehabilitation Act (“Section 504”) (29 U.S.C.S. Sec. 504, et seq.) and its regulatory scheme, N.Y.S. Educ. Law Sec. 4404, and Part 200 of the Regulations of the Commissioner of Education.

[2] I have been a N.Y. State certified impartial hearing officer since 1994.

[6] Through testimony the parties clarified the error in the date. There was no dispute about the actual date.

[8] Dr. X gave inconsistent testimony about when XX had taken these tests, whether she had accommodations, and whether she used extra time. Ultimately he testified that he was not certain. (Tr. 274-276, 530).

[9] The Meeting Notes mistakenly say October 30, 2007. Dr. X explained that this was mistakenly copied from the following page by mistake. There was no dispute that these Notes were from the June 12, 2008, meeting.

[10] See Ex. P82-54, E-mail from X X to XXX asking if she can have access to XX's 504 plan four days after the 504 meeting.

[11] See fn. 7.

[12] See fn. 10.

[15] Over the parents' objection, Dr. X 's report was not entered into evidence because the district would not have an opportunity to cross examine her. It must be noted that the report itself was not in affidavit form nor accompanied by an affidavit. Additionally, the report was not written until March 23, 2010, well into the student's second year at X and as such would not have sufficient probative value as to the appropriateness of the parents' choice for the 2009-2010 school year, especially weighed against the potential prejudice to the district. (Tr. 2198-2206)

[18] Mr. X's name is listed as a participant for the October 31, 2007, meeting. (Ex. J2C). Overall, his testimony was vague and not reliable.

[20] The parents filed their due process complaint under both the IDEA and Section 504. The parents' request for relief is addressed under the IDEA and therefore I am not making a separate determination under Section 504.

[24] Dr. X testified that there is both a day program and a boarding program. (Tr. 284-285).

Impartial Hearing Decision

Procedural History