Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF PARENTS ON BEHALF OF THEIR CHILD

AGAINST Decision and Order

Case Number: 69279

PE sc11001 DISTRICT

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. The issue is whether or not the District offered the Student a Free Appropriate Public Education (FAPE). The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B)

As a preliminary matter | offer an explanation to the parties for the late rendition ofthis decision.

Following the close of proof and the submission of briefs, I was in a car accident. This was a setback beyond my control. There were some concerns that the resultant injuries were serious but I soon recovered and I am much better with little likelihood of any permanent injury. As December came around I was in the process of reviewing the record and going about my business in the normal course. I then suffered back-to-back doses of Strep throat. This was a problem that endured for over a month, nearly two. I have recovered. Because of the lapse since the hearing, | recommitted myself to a thorough review of the testimony and exhibits. I was also aided greatly by the comprehensive briefs submitted by each side in this controversy. I thank the lawyers for their diligent work and their patience in waiting for this decision. I apologize to the Parents and the Student for the delay that they have suffered.

Background of the Case

In January 2011, the Student, a preschooler attending a private pre-school, was referred to the Committee on Pre-school Special Education (CPSE) for the first time. The Parents promptly gave consent for the evaluations and at a March, 2011 CPSE meeting, after completion of evaluations by a private agency, (Ex. S, Q, 18, 19, 20, 22, 23 & 24) the Student was classified as a pre-school student with a disability and provided with Special Education Itinerate Teacher (SEIT) services (2x a week for one hour each session) and Occupational Therapy (OT) (3x a _ week for 30 minutes sessions). The pre-school Individual Education Plan (IEP) also provided for the same services for the extended school year. (ESY), (Ex. 15)

On May 9, 2011, the Student was referred by the CPSE to the CSE (Ex. O) to prepare for the next school year. On June 24, 2011, the Parents were asked for consent to evaluate the Student and consent was given on July 13, 2011. Reevaluations (Ex. 40 and Ex. 41) were completed in September 2011. At that time the Student was still enrolled in a private school. On September 30, 2011, a CSE meeting was convened and the Student was declassified. The District provided through a 504 Plan. (§ 504 of the Rehabilitation Act of 1973)

The Parents served a complaint notice on January 10, 2012; a resolution session was held on January 31, 2012. As a result, the District paid for independent ae | | evaluations (Exs. 25 and 26) and the Parents paid for an independent central GE ocessing (CAP) evaluation and an independent {MMe valuation.

The Parents submitted an amended complaint notice on April 26, 2012 and a new resolution session was held on May 4, 2012. On May 24, 2012 a CSE meeting was convened but tabled pending additional testing. At the June 12, 2012 CSE meeting, the Student was classified as a Student with a Learning Disability (LD) and the CSE made a recommendation that included || (3x a week on an individual basis) but did not include services. On June 27, 2012, the Parents served a second amended complaint notice and a resolution session was held on July 13, 2012.

Three years of education are in issue in this proceeding:

2010-2011 concerns the timing and implementation of the preschool IEP.

e Are additional services warranted for the late implementation of services?

e Should the Parents be reimbursed for the daycare placement?

2011-2012 involves the CSE decision to declassify the Student.

e Was it proper to declassify the Student at the September 30, 201 1 meeting?

2012-2013 involves a review of the June 24, 2012 IEP to determine ifa FAPE was offered to the Student. e Is the June 24, 2012 IEP appropriate? The Student was provided with consultant teacher services and OT but no Speech and Language as a related service.

Parents’ Position

In the second amended complaint notice, dated June 27, 2012, (Ex. 6) the Parents assert that the District failed to refer, evaluate, and/or identify the Student as a preschool student with a disability within the legal timeframe, failed to follow lawful procedures when it declassified the Student at the end of September 2011, and has failed and/or refuses to provide the Student with appropriate and equitable educational services to present day.

Concerning the 2010-2011 year the Parents assert that in December 2010, the Parent requested that the District evaluate the Student. The CPSE did not evaluate her until February 2011, and the CPSE meeting was held on March 14, 2011, after the 30 school day timeframe. The recommended services were not provided until almost five months after the Parents gave the District consent to evaluate the Student. The Parents also claim that the District did not provide her with the procedural safeguards notice at the time of the Student’s initial referral. (Ex. 6)

Additionally, the Parents contend that the District failed the Student in that the mandated extended school year (ESY) did not provide for a location to deliver services and the Parent was required to pay for and place the Student in a private daycare in the summer in order to receive the services.

Concerning the 2011-2012 year, when the District declassified the Student in September 2011, the Parents assert the District did not provide her with written notice and did not conduct appropriate evaluations before ending the special educational services. (Ex. 6) The Parents state that the District did not re-evaluate the Student during the transition from the CPSE into the CSE with an annual review. (Ex. 6) When the Parent inquired about continuing the Student’s services in kindergarten, in June 2011, the District informed her that she needed to provide consent for new evaluations, which she did at the end of June or early July. The evaluations were done in September. The Parents raise the following concerns: the Student did not receive any special educational services for one month during the 2011-2012 school year (September); the District did not conduct all of the evaluations for all areas of the Student’s disability (such as sensory processing delays and dysfunctions) and instead relied on the psycho-educational evaluation; the District did not consider the evaluative reports from February 2011 by a private center; the CSE meeting was not held until September 30, 2011, outside of the 60 school day timeframe. (Ex. 6)

The Parents allege the District did not consider her input or that of the former special education teacher or RE crapist. or consider the issue of the Student’s sensory processing delays. The Parent objected to the meeting being conducted without the Eh crapist’s report; however, the meeting continued, and the Parents claim the CSE did not consider the report afterward. The Parents assert the District did not adequately consider the Student’s former special education teacher’s progress report.

Moving to the 2012-2013 year, at the June 12, 2012 CSE meeting, the District classified the Student as learning disabled, however, the Parents claim that the IEP developed after this meeting does not provide the Student with a FAPE. The Parents assert that the District did not consider or refer to the following independent evaluations: the psychological, the CAP, the ae: the P| processing evaluations. The Parents assert that the IEP does not include the present levels of performance in the areas of the Student’s academic, social, physical, and management needs; that the IEP lacks a baseline for educational performance; and, lacks goals and objectives that would benefit the Student. (Ex. 6) The Parent alleges the District did not provide appropriate special education services and programming to address the Student’s needs. (see section 60 of Ex. 6) In addition, the Parents argue the CSE did not recommend and provide appropriate testing accommodations; that the IEP was developed outside of the CSE meeting; and that the Parent was coerced into signing a consent form in May 2012 to conduct an educational evaluation of the Student in order for the District to consider the Student’s eligibility for special education programs. The Parents feel that the District has violated the Student’s due process rights. (Ex. 6)

The District’s Position

The District’s position is that they did not deny the Student a FAPE for the 2010-2011 year. The District maintains that they followed the correct timelines. (Tr. p. 19)

The District’s position is that they were not required to provide the Student with a FAPE for the 2011-2012 year (as she was attending a private school) only equitable services. (Tr. p. 21) The

District asserts that the Parents did not notify them by June 1, 2011, the deadline for services, and they did not classify the Student as having a disability because she did not meet any of the thirteen classifications of the State regulations. Moreover, the Parents did not contact the District about it until the January 10, 2012 complaint notice. Finally, regarding the 2012-2013 school year the District claims that procedurally and substantively the Student was provided a FAPE.

Student History

The Student is a young lady quickly approaching her seventh birthday, currently classified as a ee in need of special education services. At eighteen months, the Parents had the Student evaluated by an P| Therapist and a Special Education Teacher and they found that she had ee P. 838) She attended the same daycare from age four months, and then went to a pre-kindergarten there. (Tr.

P. 840) Her initial referral was in January 2011.

She is currently attending a charter school as a kindergarten student. The previous year, she was in a kindergarten class in a private school. Under pendency she is receiving consultant teacher services in the charter school and occupational therapy services. She was not classified as a student with a disability for the 2011-2012 school year but she had been classified as a preschool student with a disability on March 14, 2011, when she was provided SEIT services and OF.

Review of the Records

In a review of the related records, it is documented that the Student has delays that cause difficulties for her in school.

2010-2011

The Educational Assessment, dated 2/1/11, (Ex. 18) was conducted when the Student was in PreSchool. She was evaluated with the Learning Accomplishment Profile Third Edition (LAP-3), with a classroom observation, and a teacher and parent report. She had a 7 month, 13% delay in gross and fine motor skills and prewriting skills, which was considered a mild delay.

The EE: vatuation dated 1/26/11, (Ex. 19) was conducted when the Student was four years and seven months old and the results of her assessment were that her skills were age-appropriate.

In the Social History dated 2/2/11, (Ex. 20) the Evaluator wrote: “The primary concerns at this time are related to [the Student’s] self-directedness, inattentiveness, inability to retain presented concepts, poor Po clumsiness.”

The Evaluation Summary Report, dated 2/23/11, (Ex. 21) (when the Student was in Pre-School), reported the Student had an average cognitive ability according to the Wechsler Preschool and Primary Scale of Intelligence—Third Edition and the Learning Accomplishment Profile Third Edition (LAP-3). The Student’s social/personal skills were within normal limits as evaluated by the LAP-3. In the interview, the Teacher said the Student had difficulties with group instruction and was unable to retain concepts she was taught. In physical development, the Student had a mild delay in overall fine motor development according to the Peabody Developmental Motor Scales and mild delays in every area of the Beery Test of Visual Motor Integration. She was evaluated with the Sensory Profile long form and had scores in the Definite Difference category in fourteen areas and Probable Difference category in four areas. She was at an average level for overall gross motor skills and had mild delays in stationary, locomotion, and object manipulation skills according to the Peabody Developmental Motor Scales-2. The Student’s Receptive Language and Expressive Language skills are considered within normal limits (using the PLS-4) and pragmatic skills were “slightly reduced.” She had overall intelligibility of 100% in speech production/phonology as assessed on the GFTA-2. She did not have a formal oral-peripheral examination. In voice and fluency, the Student’s vocal pitch, quality, and loudness levels were “age appropriate.” The Student was evaluated by the Vineland-I] adaptive functioning assessment. “Her overall Adaptive Behavior Composite was reported to be in the low range of abilities.” The Student’s self-help skills were normal, as assessed by the LAP-3 and parent report. ( Ex. 21)

The Evaluator who conducted the Physical Therapy Evaluation, dated 2/7/11, (Ex. 22) did not recommend physical therapy services.

The TE rherapy Evaluation, dated 2/7/11, (Ex. 23), was conducted when the Student was four years and seven months old. She had a mild delay in overall fine motor development, based on the Peabody Developmental Motor Scales assessment. She was [in every area of the Beery Test of Visual Motor Integration. She was assessed with the Sensory Profile

Long Form and found to have Po in sensory processing/modulation; she was recommended for fservices.

The Psychological Evaluation, dated 1/28/11, (Ex. 24) was administered when the Student was four years and seven months old and was prepared in anticipation of the CPSE meeting. In the Diagnosis/Recommendations, the Psychologist wrote: “[The Student] meets the New York State guidelines for classification as a Preschool Student with a Disability based on her scores on Adaptive functioning in the areas of daily living skills, socialization, communication, and motor skills.” (She was assessed with the Vineland-II Adaptive Behavior Scales, Teacher Rating Form, 2" edition.)

The Pre-School IEP', dated 3/14/11 (Ex. 15, Ex. F) classified her as a Pre-School Student with a Disability. Her cognitive skills were age appropriate and her self-help skills were within the normal limits. It was noted “[The Parent] expressed concern regarding her daughter’s ability to retain information she learns.” Also, the Parent was concerned about the Student’s ability to follow directions and her teacher said she was inattentive. (Ex. 15) It is noted under Academic Achievement that the Student had age appropriate cognitive skills, and under Social Development, that her skills were “within normal limits.” However, under Physical Development, it is written that the Student has a “mild delay in gross motor, fine motor, and pre-writing skills...Delays in the processing of sensory information were noted...These sensory processing concerns appear to be contributing to [The Student’s] difficulties in engagement and ability to make consistent progress in her structured learning environment.” Also, “The Student’s behaviors, both observed and reported, are consistent with MMin the area of sensory modulation...”(Ex. 15) Under Management Needs, it was noted: “The Student has a

P| delay in pre-academic skills and ich interferes with participation in age appropriate activities.” She was recommended for a ESY program of individual SEIT twice weekly for one hour and individual | times weekly for a half hour—both in the early childhood setting. (Ex. F) lhe content of this IEP is not contested, only the timing and manner of its implementation.

2011-2012

The Student was given the Goldman Fristoe Test of Articulation, the Oral and Written Language Scales, and the Clinical Evaluation of Language Fundamentals—Primary Edition for the BE © Valuation, dated 9/22/11 (Ex. 41) and received scores “within the normal limits”.

The Psycho-Educational Evaluation dated 9/19/11 (Ex. 40) was conducted when the Student was five years and three months old, included the results of cognitive, academic, and school readiness tests, and behavioral and adaptive scales.

In the IEP Planning Worksheet, written by the Student’s Teacher, dated 9/26/11, the Teacher wrote that the Student had the following reading skills: “rhymes words, talks in complete sentences, recognizes some letters and sounds”; she had “average letter formation” for her written skills; and in math, she needs practice in following directions and counting to 100. She described the Student as a “loving, hard-working, helpful student. It is hard for her to focus.”

The IEP of 9/30/11, (Ex. 16) designated the Student as ineligible. The only sections that were completed were the test results and physical development. This IEP included the same statement as in the Pre-School IEP (Ex. 15. Ex. F): “The Student has a Po in pre-academic skills and sensory processing which interferes with participation in age appropriate activities.” )(Ex. 16)

2012-2013

After the Student moved into the kindergarten class at the private school during the 2011-2012 school year, the Student Evaluative Report from the second quarter, while generally reflecting progress, indicated the Student “has a need for reinforcement in areas of reading, writing, and math.” (Ex. T) She received a grade of S (meets requirements consistently) in language development, social studies, science, art, personal and social growth, work habits, and G (exceeds requirements) in religious development, music, physical education, and computer. She received an N (inconsistent in meeting requirements) in reading development, and S- in math. In the next quarter evaluative report (Ex. U), the Student’s grades went down to N- in math and reading, and in the sub-topics, the grades went down to | (needs improvement) in most categories of reading and math, and 2 in some sub-topics in work habits, personal and social growth, and language development. In a Progress Report, dated 11/11 (Ex. V), it states: “[The Student] needs daily structure to reinforce academics...”

In the letter from the BE «raps who evaluated the Student (Ex. Y, April 24, 2012), she wrote: “[The Student] demonstrated sensitivity to stimuli, a tendency to become over-stimulated, a need to take breaks and demonstrated signs of ‘shutting down’ and withdrawing.” It is recommended that the Student's iE herapist suggest modifications. “This should include working with support personnel and [the Student’s] classroom teacher to identify signs of ‘overload’ and strategizing to find appropriate ways within the classroom setting to build in opportunities for appropriate a es. Y) The evaluator recommended on-site therapy at the beginning or end of the school day because of the Student’s difficulties with transitions. (Ex. Y) The results of the Sensory Integration Praxis test were “Somatosensory needs, ae :: body awareness issues.” (Ex. Y)

The Psychological Evaluation, dated 5/31/12, (Ex. 17) conducted for and by the District, included a behavioral observation in the Student’s classroom in which the Psychologist wrote “During my observation, she seemed more unable than unwilling to sustain better rates of focus and engagement.” The Student was very distracted and hyperactive during the Psychologist’s testing of her, but he said she was given redirection and the results are “reasonable estimates” of her academic achievement. He wrote her academic levels were at an early kindergarten level.

Some examples of her skill levels were that she could not consistently identify letters or sounds, but had a basic sight-vocabulary; she could spell her first and last name but could not write any words except “the”; she could write single digits and add and subtract them with manipulatives or visual aids, but not otherwise. In the Child Behavior Checklist/Teacher Report Form, “...both profiles indicate classically significant symptoms of an ae: pe pe In his summary, he wrote: “While no single diagnosis encompasses all of [The Student’s] symptoms, ee «2 comes the closest.” However, as this was not one of the classifications used by the New York State Department of Education, he wrote that “For the purpose of the pending CSE meeting, it is my recommendation that her constellation of strengths and weaknesses be conceptualized as a Po with some of her behavioral issues being viewed as secondary to academic frustration and avoidant in nature.”

The Student was assessed with the Sensory Profile, School Companion Sensory Profile, and the Sensory Integration and Praxis Test for the Occupational Therapy Evaluation, dated 3/29/12, (Ex. 25). In the summary, thefl vaiuator wrote: “Results of this evaluation indicate definite somatosensory deficits, as well as diminished body awareness, difficulty processing auditory information, diminished midline crossing and atypical approaches to written works. In addition, sensory processing and sensory modulation abilities are compromised.” (Ex. 25)

The private psychological evaluation dated 3/12, (Ex. 26) included the Student’s history of previous testing as well as the new testing administered by the Psychologist. In her summary, she wrote that most of the Student’s skills are within average range but she has sensory issues and fine motor skills She wrote that “Based on some of her test data, anecdotal records from school, observation and reports from home, | think that [the Student] does have some characteristics of an ae 1: is evidence for some cognitive problems as well. She has significant issues with verbal fluency, with the ability to follow verbal directions, mild problems with a «i's. and delays in the acquisition of number concepts (in spite of good reasoning skills).” (Ex. 26) She recommended behavioral techniques for Students with a. “carefully selected reading program,” “special education assistance” with math, an IEP identifying her as having 1 COSY with mixed features, help in memorizing visual information, maximum levels of OT, and “adjustments in her academic program. She will need to have breaks built into her school day. The amount of written work expected of her may also need to be modified. I would like to see a ‘sensory diet’ developed for her to be used both at home and at school.” She also recommended “interventions in reading”. For her placement, she wrote the Student will need a setting “which is both structured and nurturing. She will need individual help on a regular basis to ensure that she is processing the needed material.” (Ex. 26) The Auditory Processing Evaluation, dated 3/8/12, (Ex. 42) indicated that the Student has “mild Tolerance Fading Memory” and gave a list of recommendations to help the Student in school. Her hearing was normal.

The Speech-Language Evaluation Report Revised, dated 4/6/12, (Ex. 43) reflected that the Student’s phonological skills are normal ,“ a moderate receptive language disorder exists in the areas of word recognition, and silent reading comprehension, listening comprehension,” her expressive language skills are normal, and her pragmatic skills are mildly delayed.

Ex. 33 is the IEP, dated 6/12/12 which recommended a classification of Learning Disability.

Review of Testimony

During the September 11, 2012 hearing, the Coordinator for the CSE testified. The Coordinator was the chairperson of the meeting that took place on June 12, 2012 regarding the 2012-2013 school year. He testified that the District Psychologist recommended that the Student be classified as having a learning disability and that she should be given special education services. (Tr. P. 101) It was recommended that she be given consultant teacher services and occupational therapy. (Tr. P. 102) He recalled that the Parent seemed pleased that the Student would receive services. (Tr. P.104). He said an OT was at the meeting. He did not recall any objection to the services. (Tr.104-105) He did not recall that the Parent had input about the OT services at the meeting. There was a speech language pathologist at the meeting who reviewed the document. (Tr. P. 107). The District determined that the Student did not qualify for speech language services. He said because “she only had an area of mild delay.” Regarding the issue of an individual aide for the Student - He did not think it was necessary as there would be two teachers. (Tr. P.108). She was recommended for a general education class with a special education teacher. (Tr.P.110) He did not recall counseling or testing accommodations being discussed, (Tr.P.112) or a functional behavior assessment. He did not recall any objection from the Parents about anything. He sent a draft to the Parent on June 18, 2012 in an email and received a reply on June 21, 2012 (Tr.P.113) and then received the complaint notice. (Tr.P.117)

He said he then sent a consent form to the Parent for initial services. He said he received signed consent and the services began. (Tr.P.124) He told the Parent that if she felt that the program wasn’t working after 12 weeks in the school year, to talk to him. (Tr. P.125)

The District Psychologist for the CSE testified that he evaluated the Student in one day on May 31, 2012. (Tr.P.163 Ex. 17) To prepare, he spoke to the Parent and reviewed prior records and evaluations. (Ex.40, 25 and 26) He said the documents showed that the Student has difficulty focusing, average intelligence, but sensitivities and mild central auditory processing disorder.

He was asked to do standardized achievement testing, rating scales and observation and consultation with the classroom teacher. (Tr.P.P.167-168) He said the achievement testing was necessary to obtain quantifiable data, the rating scale was to compare her with other students

Statistically and the observations were to see her needs in the classroom. He observed the Student for 20 minutes in the classroom at the private school. (Tr.P.P.168-171) He said the Student “seemed fidgety and restless, she seemed distracted.” He added that she was able to answer a question when asked but went off task again. (Tr.P.172) He gave her the WoodcockJohnson 3" Edition Test. “The testing showed that her achievement levels were more typical of children entering kindergarten than completing kindergarten.” (Tr. P.174) The rating scales showed, “that the one consistently significant area was that she was highly active, fidgety, restless and distractible and impulsive at both home and school so that those were clinical elevations that put her in the top two percent when you are looking at BE chavior. she came out high on both rating scales, teacher and parent.” (Tr.P.176) When asked what his recommendation was, he said, “well, the big conclusion, the major conclusion I had is that when you look at her consternation, her strengths and weaknesses and cognitive skills, and her difficulty benefiting from the obstructions she had, she satisfies federal and state guideline qualifications as PE ce so | wanted to identify her as re ::: was my recommendation.” (Tr.P.177)

At the June 13, 2012 CSE meeting his report was discussed with the Parent. (Tr. P.180) At the meeting, he recommended that the Student be classified as LD. (Tr.P.180) (Ex.33) On the IEP, he recommended consultant teacher services. (Tr.p18) The psychologist did suggest that ideally the Student should receive considerable consultant teacher services. (Tr. P. 212)

The School Psychologist for the CSE assigned to non-public and charter schools testified. She discussed her evaluation of the Student on September 19, 2011 which preceded the decision to declassify the Student during 2011-2012. (Ex. 40) The kindergarten teacher told her that the Student “was making an excellent adjustment to kindergarten.” (Tr. P. 224)

The District Po herapist who reviewed the Student's ff:

evaluations for the May and June meetings testified on September 12, 2012. He recommended a. both meetings based on these evaluations. (Tr. P.P. 274-275) He never evaluated the Student. (Tr. P. 272) He said he had prepared a sensory diet and given it to the CSE Coordinator for the July meeting (which did not take place). (Tr. P. 278)

When asked, he said that the physical development section of the IEP did not reflect what was in the evaluation of Ex. 25. (Tr. P. 297) He said that he developed the annual goals and that they were not discussed in detail at the June meeting and they were developed outside the meeting. (Tr. P. 306) He agreed with the consultant, that the Student’s iii would affect her performance in school. (Tr. P. 307) The [| recalled that the Parent and everyone present at the June meeting seemed to accept the program and that the next meeting would be “to finalize things.” (Tr. P.P. 308-309)

The Superintendent of the Student’s Charter School (whose job title is School Leader) testified next. She advised that the Student receive a... direct and indirect consultant teaching services. (Tr. P. 337) She said she told the Parent she could be available for the first CSE meeting for 2012-2013; then she was invited to the July meeting (that wasn’t held). (Tr. P. 341) The Superintendent talked about the language component of the curriculum which focuses on language acquisition skills, articulation, and auditory processing skills and is conducted by a speech and language pathologist and the classroom teacher. (Tr. P.P. 335-336) However, she said this program would not replace speech language therapy for students who need it. (Tr. P. 342)

The Chair for the CSE from the Central Committee on Special Education testified about the September 30, 2011 meeting when declassification was recommended. She said the team did not discuss classification for the Student because she was seen as having average skills and did not need special education. (Tr. P. 369) She spoke of the differences in classifying preschool and school age students. (Tr. P. 370) The meeting was a reevaluation meeting with a sub-committee.

Cie. .P.. 392);

The District Speech Language Therapist who attended the June 12, 2012 CSE meeting testified. At the CSE meeting she took the position that SL services were not indicated. She testified that the Student’s test results were in the average range, (Tr. P. 428) but that the auditory processing evaluation deonstrated the Student “had a mild area of delay with tolerance fading memory.” (Tr. P. 429) But she questioned the use of this testing as not developmentally appropriate for someone the Student’s age. She said the speech and language evaluation (Ex. 43) compare with the District Evaluation (Ex. 41) (which she reviewed during the meeting when the Parent gave it to her), indicated that the Student’s pragmatic and receptive language skills were ae »: her articulation and expressive language were “age appropriate.” (Tr.

P. 436) She said she did not recommend that the Student receive speech and language services because she did not meet the District’s guidelines. She explained, “...we usually qualify a student for services based on one severe area of delay or two moderate areas of delay.” (Tr. P.

438) She said the evaluator used reading tests in determining the Student’s receptive language delays, which is not the District’s method. (Tr. P.P. 451-452)

The Preschool Coordinator from the District testified about conversations with the Parent in late December 2010- early January 2011 and receiving a referral from the Student’s Parent on January 4, 2011. (Tr. P. P. 479-480) but she did not recall if the Parent was sent the due process information, although it was the usual procedure. (Tr. P. 482) The Preschool Coordinator stated that the Parent would be responsible for paying for the summer educational setting. (Tr. P. 509) The Preschool Coordinator said that the Student’s tests had shown she had age appropriate skills and said “it was because she wasn’t able to display those skills in an early childhood program that the SEIT was provided.” (Tr. P. 510) and explained that is why the District didn’t think it was appropriate to provide SEIT at home. The Preschool Coordinator also added that a public school integrated classroom would not have been appropriate either. (Tr. P.510) The witness said at the May 14, 2011 meeting, they discussed that the SEIT services would take place at the summer daycare center and didn’t know that it was an issue until learning of the hearing a week ago. (Tr. P.P. 515-516)

The next witness was the District School Psychologist. She said she remembered reviewing the preschool, the psychological, and the educational evaluations before the January 2012 meeting. She said she was concerned that there wasn’t any academic achievement testing, observation of the student in her school, or conversation with the teacher. (Tr. P.529) Although previous academic testing was done in September, she thought that the new testing would be beneficial because the Student had been in kindergarten for several months. She said that an observation is required by law and might be helpful to see what caused the change in the Student since September. (Tr.P.P.530-531) She also thought the Student should have been evaluated with attentional retention rating scales. (Tr. P.534) She said that the Parent provided consent for the evaluations at the meeting.

The EE |r svis: testified that she worked with the Student three times a week between April and August 2011. (Tr. P.618) Some of the skills that the Student is missing include: copying and writing on a small line. (Tr. P.P. 617-618)

The Parent testified at the September 25, 2012 hearing. She said for the first eighteen months the Student’s development seemed fine, but by eighteen months she had sensitivity to sound and transitioning problems. (Tr. P.p. 659-660) She had the Student evaluated through early intervention and said that she didn’t qualify although she had some sensory integrations issues and fine and gross motor skills problem. (Tr. P. 660) At age four, the Student began the prekindergarten program where teachers noticed she had problems in following directions and remembering things she learned. (Tr.P.661)

In January 2011, the Parent referred the Student to the CPSE and the Student was evaluated by a private center that the Parent chose. (Tr. P.662) The Parent faxed the referral for permission to evaluate the Student on January 10, 2010; the last evaluation was completed on February 7, 2010. (Tr. P.664) She received notice of the March 14, 2010 CPSE meeting and attended. (Tr. P.665) She was concerned that it took a month between the evaluation and the meeting. Before the meeting, the Parent took the Student out of the private pre-kindergarten and enrolled her in the daycare center where she had gone before; the Student showed improvement and received services. (Tr. P. 667) Educators from the center attended the meeting and said the Student needed services. (Tr. P.667) She said, at the meeting, “we were all in agreement about those services.” (Tr. P.668)

She testified “I was told that for [the Student] to receive services over the summer she would need to be at a school.” (Tr. P. P. 668-669) She said she kept her at the daycare as there wasn’t any other school. She understood at the meeting that she would have to pay for the Student “to attend daycare in order to receive services.” (P.670) When asked, when the issue of paying for daycare concerned her, she said it was after the Parent Advocate told her that she should not have been required to do so in October 2011. The District paid for SEIT an fii (Tr. P. 670) When asked if the District offered to put the Student in a free educational setting, she said no. (Tr. P.

672) The Parent also said she would not have put the Student in daycare otherwise because she is home all summer and could have taken care of her. (Tr. P. 672) At the March 14, 2011CPSE meeting, the Parent was told services would begin on April 18, 2011. (Tr. P.673)

Regarding the SEIT services, the Parent said, “the biggest problem that [the SEIT Teacher] was experiencing with [the Student] is the information would go away. She would work with her on one day and felt that [the Student] had understood and acquired her knowledge of let’s say, the number eight, and then she would come back to her two days later and [the Student] would no longer remember what number it was nor would she be able to write the number.” (Tr. P.P. 676-676)

According to the Parent, in the summer of 2011, “the primary concern was the sensory integration and modulation issues that she was presenting with. [The Student] was getting overwhelmed with information or the school setting was too overwhelming for her to focus on what was being taught. And, it was - it was really interfering with her ability to learn. (Tr.

P.678) The Parent said it was difficult for the Student to focus when there were distractions in the classroom such as from a fan. The Student could learn better one on one. She added, “And as the summer progressed, [the Teacher] and [the SEIT] both said to me that they thought there might be a central auditory processing issue because of this inability to retain the things that they though she had acquired or gone over well enough in an ideal setting that she should have had it.” (Tr. P. 678)

On May 9, 2011, the Parent spoke with the Preschool Coordinator by phone who told her that she found a SEIT for the Student and she would refer the Student to the CSE when she transitioned to kindergarten. (Tr. P.P. 680-681) The Parent said that she never received the referral (Exhibit 10.) In June of 2011, the Parent was contacted by the CSE for consent to evaluate the Student. The Parent said she called someone from the District to ask why the Student needed to be reevaluated as she was evaluated in February. The Parent was told that the Student had to be reevaluated in order to receive services. (Tr. P.684) The Parent said she agreed it was necessary and asked if they could give the Student cognitive and speech and language evaluations as these were recommended by the SEIT and pe (Tr. P. 685) She didn’t feel it was necessary to have an updated BBB atuation. (Tr. P.P. 697-698) The consent form was dated July 13, 2011, the day the social worker went to the house. The Parent said she was not contacted in the summer of 2011 about the evaluations after submitting the consent form.

She said she called the social worker in August 2011 who told her to contact a person at the District. When she did, he told her a team was supposed to review the file, but hadn’t yet because of .. problems. (Tr. P. 690) The Parent said she was concerned because the Student would be going to kindergarten in September and would need services. She said the person from the District told her she would reassign the Student to another team. (Tr. P.691) No transition meeting was held before the 2011-2012 school year. The Parent was concerned because the Student would begin kindergarten without services. She called the District and was told that if her doctor gave her a prescription she could continue with fi the school. (Tr. P. P.692-693) The District provided six sessions offi before the September 30 meeting. The Parent was not informed the Student was receiving the services until she called the private school to find out and the secretary told her. (Tr. P.694) She said that she was aware that the student received psychological and speech and language evaluations two weeks before the September 30" CSE meeting. (Tr. P.694) The Parent spoke with the School Psychologist before and after she evaluated the Student. (Tr.P.696) She said she was very surprised when the Psychologist told her that the Student received higher scores than she did at the private center and that the Student was ineligible for services. When asked why she was ineligible, the Parent testified that it was “because her ability score was high, it was in the average range.” (Tr. P.698) She said that she hoped that the decision would be changed when she talked with the member at the CSE meeting on September 30". (Tr. P.698-699) The Parent said she gave the Student’s history at the meeting and discussed her concerns. She was worried that there was noi at the meeting and said so. (Tr. P.701) She said she did not return the SEIT teachers’ report to the meeting because they assumed they would have it but she referred to it. (Tr. P.p. 704-705) (Ex. AA) At the meeting, the Parent was told that the District would not providdl .. that it falls under a 504 and that [the Private School] would have to do it, and then [the Private School] told me they don’t do it either. (P.705-706)When asked if she was told of her right to have additional independent testing of the Student, she said no. (P.707) At the meeting, there was discussion of the Students ii She said the classroom teacher said the Student was inattentive and easily distracted. When asked if the thirteen classification categories were discussed, she said no. (P.709) The Parent was told to contact the District related services provider. (P.710) She called her and the provider “stated there was nothing she could do for me at that time because the committee had said that [the Student] was ineligible for services, and tha berapy falls under the 504, which meant that it was [the Private Schools] responsibility to provide those services.” (P.611) The Parent thought the Student needed fi and SEIT services and was concerned about her Fo (P.711)

A complaint notice was filed in late 2011 and as a result ofa resolution meeting in January 2012, evaluations would be authorized and paid for and then the District would reconvene to evaluate the data. (P.719) The evaluations were not completed until April. (P.720) The agreed upon testing were the CAP evaluation, thei valuation, and the psychological evaluation. (P.721) The Parent paid for the po and neurological evaluations. The neurological evaluation was kept private but was reviewed by the private evaluating psychologist. The Parent also paid for the CAP evaluation. (P.728) She said that the Student had great difficulties with the CAP and neurological evaluations and was exhausted and upset and it affected her performance at school. At the May 2012 resolution session, the testing was available for the meeting but was not discussed. (Ex. 42 and 43) (P.742)

The Parent testified that at the meeting, she was told the District needed an academic psychological evaluation, a classroom observation, and a rating scale done, in order to know if the Student was eligible. The Parent said she didn’t understand why the evaluations weren’t discussed in January. (P.744-745) The Parent said she was upset at the idea of the Student undergoing more testing because it was so stressful for her. (P. 747) Regarding the May 2012 CSE Meeting the Parent testified as to what the kindergarten teacher said, “. . . she talked about how [the Student] is performing as ihe in her classroom of twenty students; That [the Student] still cannot recognize some of the letters in her own name. That at times, she’s so distracted that she is not in her seat and not attending. That she requires a tremendous amount of one-on-one time.... “(P.751)

When — if the recent valastion (Ex. 25) was fairly reviewed she said no, because “when [the Psychologist] began to read the report, she didn’t read it all the way through. There were | through 9 recommendations made, she only read a few of them...I went over the things that were omitted in her account of the report. (P.756) During the meeting, the District again asked for further testing and the Parent said she objected to it. (P.756) She was asked if she thought that the Student wouldn’t receive services unless the Parent agreed to the testing, she said, “that was my understanding.” She agreed to the testing, but when she was asked if she agreed voluntarily, she said no. She agreed under the condition that someone other than the District psychologist conduct the testing. (P.758)

At the June 2012 CSE meeting, she testified that at the meeting, the District Psychologist said the Student needed to be classified as learning disabled. (P.765) She said the speech and language pathologist said the private center “has a different criteria” for speech language services than the District. (P.767)

She said that at the meeting, “the committee said that they couldn’t really know for sure how much she could get in terms of consultant teacher services.” (because the Student would be attending a new charter school) She said that they “put 90 minutes five times a week.” She said she was concerned about needing to hear from the school...” | wanted to make sure [the Student] got what she needed, not what was there.” (P.769)

Regarding services, she said at the meeting, she requested that the therapist train the staff in helping the Student with sensory integration dysfunction and she said that it was not in the IEP.

(Ex. 6 - 15) (P.770) When asked, she said that at the meeting she said she wanted an iv: knowledge of Po asked that it be in the IEP, but the Committee rejected that. (P.776-778) When asked, she said they did not discuss the Student’s PLEPS or goals.

The Parent said the IEP describes the Student’s sensory deficits but “It doesn’t go on to demonstrate specific goals, measurable goals, and also in terms of how it is supposed to be implemented in terms of service delivery.” She wanted a sensory diet included in the IEP. (P.

779-780) Her main concerns were “the consultation and implementation of the sensory diet for [the Student].” (P. 781) When asked, she said she would have wanted the CSE team to consider a functional behavior assessment and behavior intervention plan at the meeting. (P.782)

Her main objections to the IEP were that: “The IEP does not list any of the testing that was done in the spring of that year. All of the private evaluations were omitted, like they didn’t happen.

And—and that is reflective in the things that are written.” (Tr. PP. 789-790) She also felt there should have been measureable goals relating to the Student learning to pay attention. (Tr. P. 791)

The Parent said that when the District members at the resolution session proposed another meeting that it wasn’t an acceptable resolution: “Because of the past three CSE meetings that I had with the District, | don’t know how many resolution meetings, really didn’t feel that I was going to be given more respect or a voice more than | previously had been given.” (Tr. P. 793)

She did not go to the July 25, 2012 scheduled CSE meeting, but said she would have gone to another resolution meeting, but the District never scheduled one. (Tr. P. 795) She said the reason she signed the consent for the Student was because “I didn’t want her to have another school year with no services.” (Tr. P. 796) The Parent’s testimony was briefly suspended to accommodate the next witness.

The SEIT Teacher from the Hearing and Speech Center who provided services to the Student at the daycare testified that she worked with her from the end of April 2011 through August 2011

- for six weeks. (Tr. PP. 807-808) When asked if she thought that the Student needed continuing services, she said, “I think so. I believe so.” (Tr. P. 813) She explained, “...There was very little retention of the information, and we did a lot of reinforcement, intense reinforcement. She would maybe havea skill and a short time later it was almost like it never existed....So I feel that those goals were not met, not attained.” (Tr. P. 814) When asked, she said the District never contacted her. (Tr. P. 814)

Regarding the March 14, 2011 meeting, the Parent said she did not disagree with the services (Tr. P 847) or where they would be provided (Tr. P. 849). When asked if she provided written notice of her intent to seek reimbursement for the summer day care program, she said no. (Tr. P. 850)

The Parent said that the School Psychologist for the CSE who conducted the psycho-educational report told her “prior to the meeting that [The Student] was eligible for services.” (Tr. P. 861) The Parent received the SEIT report before the meeting and the hearing and speech evaluation after when the | ie it to her (that evaluation was not at the meeting, but the SEIT report was).

The Private School did not provide special education teacher services to the Student because the teacher only worked with students who were classified. (Tr. P. 871) The Student did not receive special education teacher services for her first year of kindergarten. (Tr. P. 872)

When asked if she felt coerced into signing the consent form, the Parent said, “They had stated that they would not consider giving [The Student] any service unless I consented to more testing." (Tr. P. 893) When asked if she felt she didn't have any other options, she said, "I felt based on what the District was telling me, and we asked them to be clear on this, that they wouldn't consider any kind of services, including pe no services would be given to [The Student] if I didn't agree to sign for that educational evaluation, so | signed it because I wanted [The Student] to get services." (Tr. P. 895)

The Parent did not tell the District that the Student would be attending the charter school until the June 12, 2012 meeting because she did not think it was relevant to the Student's classification (Tr. P. 899) and she did not want the private school to know she was not returning. (Tr. P. 902) thy The Parent said she agreed about the amount of OT and the idea of the maximum amount of consultant teacher services available consistent with the Private School schedule, but did not agree about the FBA and BIP. (Tr. 908-910) She did not disagree about the issue of counseling or the aide because she assumed these would be covered in the sensory diet and SEIT. (Tr. P. 912)

When asked what she disagreed with at the meeting, she said, "I was very upset that she was not given speech, very upset because that is one of her main deficits, ho problem needs therapy." (Tr. P. 914)

When asked why she cancelled the scheduled CSE meeting in July, she said, "My husband and I had decided another CSE was just not getting what we needed for [The Student]." (Tr. P. 921)

The Private Psychologist who evaluated the Student in March 2012 testified that she reviewed the District evaluations, some of the Student's papers, and the CAP before conducting her own evaluation. (Tr. P. 943) She said the reports showed that the Student was experiencing problems but "the data that was there didn't give us a clear enough picture about what that was." (Tr. P.

947) She was concerned that the Vineland data was taken the first week of school; she said, "you need a longer time frame." (Tr. P. 951)

She did not give the Student academic testing because it had been done six months earlier and she said, "We consider that to be in the realm of accuracy." (Tr. P. 967) The Psychologist said that the Student’s problems include: es es (Tr. P.P. 969-970) She said, "...if you just look at the numbers for the P| a: going to say to me this is way too mild, but if you look at in combination with everything else, you cc impairment in her performance and impairment in her learning.” (Tr. P. 970)

When asked why she recommended a classification im she said, “My understanding of the way in an educational setting you define a learning disability is they have such variability in data that it causes concern that we will have some expectation that it would impact learning. ... And in my opinion, in combination with the rest of what is going on with this young lady, we have a problem. This is what I use.” (Tr. PP. 970-971)

She said she relied on her testing but more on the Student’s skills, not just the results. When asked why she didn’t include fe S| she said it was just no fi (Tr. P. 1016)

The Special Education Consultant Teacher with the charter school was next. When asked if she is using the IEP, she said, yes. She said the Student is currently doing well in school, doing well in letters and numbers. (Tr. P.1025) (Ex.33)

The Audiologist testified next that she evaluated the Student on March 8, 2012. She said the Student was upset for the first forty-five minutes of their meeting (Tr. P. 1047) and took two and a half hours for her to get calm before the actual evaluation. (Tr. P.1048). After that, the Student stayed calm and did the testing without any need for re-direction. (Tr. P.1049) When asked if the testing was appropriate for a five year old, she said, yes. (Tr. P. 1052) She said she felt that the Student was experiencing (i (Tr. P. 1056) When asked how tolerance fading memory would affect one’s ability to learn, she said that “when information is presented, you know, just verbally and no visual info is presented . . . an individual would have a hard time with recalling or remembering information.” (Tr. P. P.1060-1061) There is a link between tolerance fading memory and expressive language. (Tr. P.P.1065-1066) When asked if she thought the Student's fMlMlaffected her ability to learn, she said, yes. (Tr. P.P. 1067-1070)

The Speech Language Pathologist at the private center testified. She evaluated the Student on April 6, 2012. She said the Student received redirection and long breaks but the test results were accurate. (Tr. Pp. 1089-1090)The Student showed difficulties in decoding, but because of her age, her skill level was considered normal. However, the pathologist was concerned. (Tr. P.

1094) She did not have time to give an expressive language test. (Tr. P.1095) When asked what affect the Student’s tolerance fading memory had on her speech and language skills, she said, “she could follow simple directions, but as the increased in length and complexity, she was unable to follow them because she would quickly lose the information.” (Tr. P.P.1096-1097)

She said that the testing was in a quiet environment different from a classroom. (Tr.P.1098) The reading test showed that the Student’s “skills with word recognition, silent reading and listening comprehension were all delayed.” (Tr. P.1098)

Regarding diagnosis of moderately receptive language disorder, she said, “When a child comes in for a testing, we have to look at them in the whole picture. The fact that a lot of [the Student’s] testing was within normal limits, you know, looking at her as whole child, her significant distractibility, her inattention, then the difficulty with the decoding that was reflected in her comprehension and reading test, I did not feel comfortable giving her that diagnosis of her skills were within normal limits. As a whole, I thought she was moderately delayed.” (Tr. P.P.1101-1102) When asked if a student with a moderate delay would benefit from speech language therapy, she said yes. (Tr. P. 1102)

She reviewed the Student’s post testing results on the same tests after the literacy program at the charter school, ‘‘and her scores pre to post testing varied greatly showing that [the Student’s] skills are very inconsistent and they are not fully developed and she continued to require F | <r to help her get up to the level she should be at.” (Tr. P. 1104) When asked about the impact the delays have on the Student’s ability to learn, she said, “So if [the Student] would not be able to decode something, how could she, you know, apply it and read to learn about something that she is having difficulty decoding and comprehending at a basic level.” (Tr. P. 1104)

The TE Therapist testified that she evaluated the Student on March 9, 2012 at the private clinic. She said she was “very distractible.” (Tr. P. 1138) When asked how the Student’s sensory deficits affected her ability to learn age appropriate skills in the area of pe she responded, “If you don’t appropriately filter and sort and make sensory information meaningful, you can’t act on it. So for [the Student] things like learning to write her letters or learning to hold her pencil, and use the right amount of pressure is not an automatic for her. She has to constantly be rearranging and compensating and checking her stuff to make sure she’s doing it..” (Tr. P. 1138?) She said it is hard for the Student to pay attention and listen if she is having trouble with something such as trying not to fall out of her chair.

Regarding the IEP, when asked if the Present Levels of Educational Performance (PLEP) statement reflected her testing and finding, she said, “it is similar...I think it is very detailed with the sensory issues that she has.” (Tr. P.P. 1151-1152) She explained that the reason the Student needs accommodations is: “*...if we put these in place then it minimizes the chance of her tuning in and shutting down, so she can stay at her optimal performance and she can take information in and she can have output on that info.” (Tr. P.1156) She said that preferential seating and redirection (which she didn’t recommend at the time) would be helpful and the Student would also need help with homework. (Tr. P.P.1 178-1179)

ANALYSIS

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S.

Ct. 3034 (1982); Walezak v. Florida UFSD, 142 F.3d 119 (2TM Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, | Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[af1]).

Borrowing from the Parents’ brief, ] focus my attention on the following four issues:

1. Was the 2010-2011 program implemented in a timely fashion?

2. Are the Parents entitled to reimbursement for the cost of their tuition payments for daycare during the summer of 2011?

3. Was the declassification of the Student for the 2011-2012 school year proper?

4. Is the June 24, 2012 IEP created for the 2012-2013 school year appropriate?

My decision considers both procedural and substantive grounds. In making this decision I conducted an exhaustive review of the record and incorporated arguments of counsel. As a preface to my findings I note that the law with respect to procedural violations requires an extra analysis and while I will try to segregate the main issues according to their nature as either procedural or substantive, | recognize that there are often features from either category in any given issue.

Procedural Violations

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5 Cir. 1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon_R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id. For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “...the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, | consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007])

Was the 2010-2011 program implemented in a timely fashion?

The IDEA does not specify a time frame for implementing an JEP after it has been developed.

Federal regulations require that once an IEP is adopted for a disabled child, "[e]ach public agency shall ensure that (1) [a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting." 34 C.F.R. § 300.342(b)(1)(ii) (2005). According to New York's implementing regulations,"[t]here may be no delay in implementing a student's IEP." 8 N.Y.C.R.R. §

200.4(e)(1)(i). The board of education must: arrange for the preschool student with a disability to receive such programs and services . . . no later than 30 school days from the recommendation of the committee [on preschool special education].” 8 N.Y.C.R.R. § 200,16(f\(1_) In this case I find that the Parent signed a consent for evaluation on January 7, 2011 (Ex. Q-1) and that the IEP was actually implemented beginning on May 9, 2011, approximately one month later than the services should have been provided. (Tr. P.P. 673, 680, 811)

However, Section 300.342(b)(1)(ii), requires only that IEPs be implemented "as soon as possible," not "immediately," or within 30 days, as the Parents assert. “In 1997, Congress amended various parts of the IDEA. Pub. L. No. 105-17, 111 Stat. 37. The Secretary of Education subsequently published a notice of proposed rulemaking in the Federal Register to amend certain portions of the regulations governing the IDEA. 62 Fed. Reg. 55026 (Oct. 22, 1997). The notice invited comments on the proposed regulatory changes. Id. With respect to § 300.342, several commentators stated that the terms "as soon as possible" (in the regulation itself) and "undue delay" (in the accompanying commentary) were "not meaningful" and requested that the Secretary define or clarify those terms. 64 Fed. Reg. 12406, 12579 (Mar. 12, 1999). Commentators also recommended that the Secretary impose an "outside timeline," such as 15 days, for the implementation of IEPs following the meetings. Id. The Secretary declined these suggestions, stating it "would not be appropriate to add an outside timeline under § 300.342(b) for implementing IEPs, especially when there is not a specific statutory basis to do so." DD. v. NYC Board of Education, 465 F.3d 503 (2" Cir., 2006)

Therefore, I do not conclude there was a per se violation of the Student’s rights rather, | review the findings in light of the District’s excuse for the late implementation. Of note, the Parent requested that private evaluations be conducted in the evaluative effort. (Tr. P. 662) In fact, the District acquiesced to this request and six separate evaluations were conducted by an outside agency. (Exs. 19-1, 24-1, 18-1, 23-1, 22-1, 21-1) Testimony indicates that the evaluative materials were provided by February 25, 2011 and that a CPSE meeting was scheduled on March 14, 2011. (Ex. 15-1)There was another short delay in implementation while the District awaited the approval of the Board of Education.

On balance I agree with the Parent that the District was late in implementation of the Student's program. The fact that the evaluations were conducted by an outside agency mitigates the fault of the District. (The District relinquished control over the timing of the evaluations and it is understandable that communicating the schedule for the meeting was somewhat impaired.) In conclusion, I do not find the educational deprivation was de minimus but, the deprivation of benefits was of relatively short duration. On this issue, | award the Student 15 days of make-up services.

Are the Parents entitled to reimbursement for the cost of their tuition payments for daycare during the summer of 2011?

To this issue | apply a classic reimbursement analysis. The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), which is tailored to meet the student's unique needs. A board of education may be required to pay for educational services obtained for a student by his 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 (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The fact that the private school selected by the parents has not been approved by the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

In this case it is clear that the District did not provide a placement for the Student. No bricks, no mortar. At the CPSE meeting all agreed that the Student would go to Private daycare.

Following from that agreement, I do not find that the Private daycare was inappropriate. The Second Circuit has clearly stated:

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. .

Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105112 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 [2d Cir. 2006]

In this case the District was aware of the daycare environment and actually suggested that that environment would be preferable to the home for the provision of SEIT services. (Tr. P. 499)

As an equitable matter, I find that notice from the Parent was lacking. Tuition 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 child 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. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d] This statutory provision "serves the important purpose of giving the 40) 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 [Ist Cir. 2004])

The Parent did not verbally claim or provide a writing indicating that the Parents would be seeking tuition reimbursement. To this the Parent candidly testified that she was unaware of the requirement until after the fact.(Tr. P. 670) On the other hand she testified that she did not receive notice which the District was required to provide although this was partially rebutted by testimony indicating that it was the practice of the District to provide such notice. The Parent testified to the cost of daycare that summer. $540.00 (Tr. pp. 676-677) Considering the forgoing, I award the Parents reimbursement for tuition costs in the amount of 75% of their expenditures for daycare during the summer of 2011, not to exceed $405.00.

Was the declassification of the Student for the 2011-2012 school year proper?

The Board of Education bears the burden of proving that the CSE’s recommendation to declassify [ ] was appropriate (Application of a Child with a Handicapping Condition, Appeal No. 93-32; Application of a Child with a Disability, Appeal No. 98-39). I am persuaded by the compelling arguments raised by Parents’ counsel that declassification in this case was inappropriate.

Educ. Law § 3602-c First, | dismiss the arguments of the District related to dual enrollment. Pursuant to Education Law § 3602-c, boards of education of all school districts of the State shall furnish services to students who are residents of this State and who attend nonpublic schools located in such school 4) districts upon the timely written request of the parent or person in parental relation of any such student. For the purpose of obtaining education for students with disabilities, such request shall be reviewed by the CSE of the school district of location, which shall develop an IESP for the student based on the student's individual needs (Educ. Law §§ 3602-c[2][a], [2][b][1]las amended by L.2007, c. 378, § 27, subd. d; L.2005, c. 352, § 22).

The District argues that the federal regulations provide that the Student placed in a private school by her Parents does not have an individual right to the same education and services that the Student would receive in a public school. The District also contends that the Student is not entitled to special education services at the private parochial school under State law because Education Law § 3602-c requires a parent to make a timely written request for dual enrollment special education services for parentally placed private school students. The District asserts that the Parents did not make a written request for dual enrollment for either the 2011-12 school year.

The request for such services is to be filed with the board of education on or before the first day of June preceding the school year for which the request is made (Educ. Law § 3602-c[2]).

However, because the hearing record demonstrates that the District had been treating the Parents’ daughter as if she were dually enrolled for the school year in dispute, | excuse the Parents of this requirement. (see Application of a Child with a Disability, Appeal No. 02-035 (where the dispute involved the location of services, not the need therefore)). I note the Parent’s unchallenged testimony that everyone at the District was aware that she was sending the Student to the private school for kindergarten; she told the CPSE in March. (Tr. P.692) The District also contends that Education Law § 3602-c provides qualifying language that a district need only provide special education programs and services to dually enrolled students "on an equitable basis," as compared to special education programs and services provided to students with disabilities attending District schools. However I am persuaded by the language of The New York State Court of Appeals which holds that:

"[t]he statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school. Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise [citation omitted], but that is not a matter of statutory compulsion under section 3602-c." (Bd. of Educ. v. Wieder, 72 N.Y.2d 174, 184 [1988]).

In Wieder, the court further stated "[t]he paramount principle that guides State law is concern for a handicapped child's educational needs, whether in public or private school" and that such children "are to be afforded suitable educational opportunities according to their individual needs" (Wieder, 72 N.Y.2d at 186). Moreover, the court concluded that school districts were not compelled to provided services exclusively at public or private school placements, and that "such a compulsion would be inconsistent with the regulatory scheme, which contemplates that the placement of children in programs will be guided generally by their individual educational needs" (Wieder, 72 N.Y.2d at 187-88). Section 3602-c of the Education Law does not mandate the location where services are to be provided to a student, but a contention that such services cannot be provided at a parochial school is not supportable in light of Wieder, 72 N.Y.2d 174 (1988) (see Board of Educ. v Kain, 60 A.D.3d 851, 851-52 [2009]; Application of the Bd. of Educ., Appeal No. 04-079). SRO 09-115.

Identify the Student’s needs Having dismissed the District’s concerns relative to dual enrollment, | turn to the fundamental responsibility of the District: “An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 CFR 300.320[a][2]: 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services.” (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Student with a Disability, Appeal No. 12-01

The amended Individuals with Disabilities Education Act (20 USC 1400 et seq., which became effective on June 4, 1997, requires a board of education to evaluate a child before determining that that child is no longer a child with a disability (Section 1414[c][5] of the IDEA). In this case the District convened a subcommittee of the CSE on September 30, 2011. The Parents did not contest this in the complaint notice. (Tr. P. 389) The CSE relied upon several updated evaluations which support the recommendation to declassify the Student: Principally a Psychoeducational evaluation and a speech evaluation. These evaluations were made in the weeks immediately before the CSE meeting.

The School Psychologist for the CSE discussed her evaluation of the Student on September 19, 2011 which preceded the decision to declassify the Student during 2011-2012. (Ex. 40) She recalled that the kindergarten teacher told her that the Student “was making an excellent adjustment to kindergarten.” (Tr. P. 224) She performed an abbreviated scale of the cognitive testing (Stanford Binet Intelligence Skills 5" Edition) because “eight months earlier her cognitive abilities were assessed to be in the average range and there was no documentation of concern.” (Tr. P. 227) Her scores were in the normal range in this testing. (Tr. P. 228) For achievement testing she used the Bracken Basics Concepts Scale, and Bender Gestalt, 2TM Edition (Tr. P. 225) She said the Student’s “skills were in the average range in areas of reading comprehension, math problem solving, spelling, writing, and she had a low average scale in area of letter word identification.” (Tr. P. 229) In the Student’s behavior scales, “there is no significant concern at all for externalizing or internalizing problems.” (Tr. P. 230) The Chair for the CSE said an IEP was not developed at the meeting because the Student was not eligible for special education. (Tr. P. 373) Given this presentation I find that the District did make a prima facie case relative to the decision to declassify.

However, even when the District complies with the requirements surrounding mandatory members of the IEP team, it acts at its peril when it fails to invite professionals with knowledge of the child's disability to participate in developing a program -- particularly if the refusal to do so results in some harm. See, e.g., Taylor v. Board of Educ., 649 F. Supp. 1253 (N.D.N.Y. 1986) (where the district did not bring the doctors and teachers from the child's then-current placement outside the school system into the IEP process and, as a result, proposed a set of services that was totally inadequate for the needs of the child, it violated the procedural requirements of the IDEA by failing to give sufficient consideration to the opinions of the individuals who knew the child best). Moreover, the parental participation procedures take on a heightened importance when making the determination to end all services and declassify a child. SRO 04-083

In the complaint notice and again during testimony the Parent asserted that input from the Parent was not appropriately considered and that the CSE did not invite a special education teacher who had worked with the Student or an occupational therapist who had worked with the Student. (Ex.

6 p. 5, Tr. P.p. 395-396) As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (Section 1414[c][1][A] of the IDEA). On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (Section 1414 [c][1][B]). If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, the board of education shall notify the child’s parents of that determination and the reasons for such determination. The CSE must also inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability (Section 1414 [c][4][ii] of the IDEA). The District failed to inform the Parents of their rights to request another evaluation, according to the mother’s testimony. (Tr. 707) The Parent’s testimony revealed that there was no a. attendance although, a report was made available. (Tr. P. 701) The Parent also testified regarding her concerns which were expressed by the SEIT who had been working with the Student for the past several months. The Parent was also concerned that the sensory input issues were not properly explored. At the CSE meeting the Parent raised her concerns about the lack of input from the Student’s CPSE providers. (T. P.p. 701, 703) The Parent testified that she was not in agreement with the outcome of this meeting, rather she was “shocked” (Tr. p. 705)

While the CSE considered the Student’s Pe (Tr. P. 250), the School Psychologist for the CSE said, “I think we felt there were definitively some OT needs, however, the component that was lacking for me was that BE 2ccmic impact in her classroom environment.” (Tr. P.P. 252-253) This testimony did not convince me that the evaluative data before the CSE was adequate.

The Chair for the CSE non public school team said, “We considered the information that had been updated based on the review of the occupational therapy records.” (Tr. 391) She explained that anfiieviewed the Student’s records, (Tr. P. 394) but an a. not in attendance at the meeting. (Tr. P. 391) In addition, when asked, the Chair said she did not use the SEIT progress report (Ex. AA) in the reevaluation. (Tr. P. 398 and P. 403)These reports indicated that the Student had not met her pre-school goals.

The District Psychologist for the CSE testified that it is the Student’s sensory processing dysfunction that is preventing her from learning. (Tr.P.191) Even though his evaluation was performed nine months after (May 31, 2012 evaluation date (Tr.P.163 Ex. 17)) the operative

CSE meeting, because his conclusions regarding a: consistent with the observations of the | and SEIT I conclude that these difficulties were present during September 2011.

SRO 04-083 clarifies the responsibility of Districts in New York State:

If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, it shall notify the child’s parents of that determination and the reasons for such determination, and also must inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability (20 U.S.C.§ 1414 [c][4][A]; 34 C.F.R. § 300.533[d]; 8 NYCRR 200.4[b][5][iv]; see_also 8 NYCRR 200.5[a][5][i]). A group of qualified professionals and the parent of the child must determine whether the child continues to be a child with a disability eligible for services (20 U.S.C. § 1414[b][4][A]; 34 C.F.R. §300.534[a][1]: see also 8 NYCRR 200.4[b][5][ii]).

In this case I find the District made a substantive error in failing to recognize that additional data was needed and a procedural error in failing to inform the Parent of her additional right to request an assessment to determine whether the child continues to be a child with a disability. As a result of this error I find that the District did impede the Student’s right to a FAPE.

Application of a Child with a Disability, Appeal No. 07-007

The SEIT Teacher who provided services to the Student at the daycare worked with the Student for six weeks in the summer before the September 2011 CSE meeting. (Tr. PP. 807-808) She was not at the CSE meeting but testified at the hearing. It was her opinion that the Student needed a continuation of services. (Tr. P. 813) In explanation she testified “...There was very little retention of the information, and we did a lot of reinforcement, intense reinforcement. She would maybe have a skill and a short time later it was almost like it never existed....So I feel that those goals were not met, not attained.” (Tr. P. 814)

Further, the BB information which preceded the September meeting indicated that Student was ae need of services. (See for example the Pre-School IEP, dated 3/14/11 (Ex. 15, Ex. F)) After the meeting, the record indicates the Student was severely in need of services. (“[the Student] stood out immediately as the most distracted and active child in the room.” Psychological Evaluation, dated 5/31/12, (Ex. 17))

In conclusion I find that the Student is entitled to a remedy of additional services. | remind the parties that this remedy is equitable in nature and while I find for the Parents I do not believe the error in declassification was purposeful. At the time of the September 30, 2011 CSE meeting the Parent was without an advocate and it does not appear from the testimony that either the Parent or the District personnel at the meeting were aware of the heightened scrutiny afforded a declassification determination. The scope and extent of such services are to be determined by the CSE after updated testing and consideration of the Student’s current development as well as the availability to include such services in her existing program. From my observations at the hearing I believe the Parties can fashion an appropriate remedy. A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005)

Is the June 24, 2012 IEP created for the 2012-2013 school year appropriate?

The District classified the Student as ae: the June 12, 2012 CSE meeting. In bringing this claim, the Parents assert the District did not consider or refer to the independent evaluations. They say the IEP was developed outside of the CSE meeting; that it does not include the Student’s present levels of performance; that it lacks a baseline; and does not include goals and objectives or appropriate special education services and programming to meet the Student’s needs; and it did not recommend and provide appropriate testing accommodations for the Student. The Parent also asserts that the District coerced her into signing a consent form for an educational evaluation of the Student and was told the District would not consider the Student’s eligibility for special education programs without it.

The District claims they did everything, procedurally and substantively, in order to provide the Student with a FAPE for the 2012-2013 school year. They argue that: a) because the Student tested in the normal range, she needed additional evaluations to determine if she was eligible for special education services; b) the District was not required to provide the Student with i aR because the results of her testing showed that she had only a P| | her school’s literacy program would help her or she could enroll in a private program; c) the Parent was wrong not to consent to additional evaluations at the May 4, 2012 resolution session; d) the District’s position is that the Parent was not coerced into signing the consent form at the May 24, 2012 CSE meeting and that they were right to table the meeting without classifying the Student, while waiting for the evaluation resolutions; e) the District Psychologist for the CSE conducted the necessary evaluations and appropriately recommended the Student be classified as having a learning disability; f) the District appropriately classified the Student and provided her with a FAPE; g) the June IEP provided the Student with an appropriate amount of consultant teacher services and | the District appropriately determined that the Student did not require therapy, po an FBA/BIP, sensory diet, or individual aide; i) the IEP PLEPS accurately describe the Student’s needs, the IEP goals are appropriate, and the Student does not require additional aids, modification, or testing accommodations ;j) The District alleges that it is the Parent’s fault that the situation was not resolved before the start of the 2012-2013 school year because the Parent cancelled the July 25, 2012 CSE meeting ; k) it is the District’s position that compensatory services should be denied for the 2012-2013 school year.

In reviewing the 2012-2013 school year, I see the fundamental issue as the amount of consultant teacher services afforded to the Student. According to The District Psychologist for the CSE who evaluated the Student said, “. . . the consensus at the time was that [the Student] should get as many minutes as the school can provide.” (Tr. P. 181) In fact it was his opinion that the Student should receive considerable consultant teacher services. (Tr. P. 212) As I review the record there is no opinion to the contrary. Accordingly, I find that the District did not justify the recommended 1.5 hours of consultant teacher services each day and I conclude that a FAPE was denied the Student for the 2012-2013 school year.

As a second matter of importance, there remains an issue concerning the need for iy BE «vices for the Student. While the lack of the services was adequately defended by the District, and I do not find a denial of FAPE on this ground, the concerns of the Parent together with the recommendation for such services by the independent evaluator, leave an open question as to the appropriateness of the services in the future. The District ae 2's and the PE ° 201015: employed different methodologies in evaluating the Student and they came to different conclusions.

The ED «10x: was apparently testing to determine if the school based Language to Literacy program was appropriate and she failed to test for expressive language delays. (Tr. P.1095) The District — on the other hand, was testing to determine if the Student was in need of mandated services from the District. In reviewing the records and testimony I am amazed at how complex the issues are for the Student. For instance, there is a language component of the Student’s curriculum which focuses on language acquisition skills, articulation, and iE skilis and is conducted by ii BE pathologist and the classroom teacher. (Tr. P.P. 335-336) However testimony indicated that this program would not replace pO therapy for students who need it. (Tr. P.

342) Accordingly I direct that retesting be conducted for the Student in the area of po | RE after the CSE has an opportunity to determine the testing protocols and the areas of greatest concern.

With respect to the need for a one to one aid, I adopt the opinion of the District Psychologist for the CSE and believe that once the appropriate Consultant Teacher Services are provided, the Student will not be helped by the use of an aid, but potentially hindered. (Tr. P.p. 182-184)

Likewise the need for counseling and a behavior intervention plan is unlikely. This is not to say that a functional behavior assessment should be ignored or that a BIP should not be in place. | direct the District to begin this process and determine if the hypothesis of the District Psychologist for the District is correct. If the Consultant Teacher services are adequate then the BIP may fall by the wayside.

The idea of providing the Student with a sensory diet is appropriate. Before the hearing one was being developed by the District). (Tr. P. 278) I do not order the District to implement this service but certainly, if there is a need, or if all are in agreement to do so, this should be considered in light of the Student's | Tas Concerning the issue of the Parent consenting to further testing at the behest of the District School Psychologist, I find this to be an unfortunate impasse. I believe the Parent was justified in exhibiting her concerns that additional testing was suspect. In light of my finding that the declassification in early 2011 was improper, | empathize with the Parent who was looking to promptly begin services. However, I find that the District School Psychologist acquitted herself through her testimony. From her perspective, at the time the Student was not classified and she was simply attempting to obtain appropriate test results. The bottom line for her was, “I didn’t feel that the CSE had enough information... to make an appropriate classification.” (Tr. P.542)

As a final matter I am confident that going forward the CSE will ensure accurate descriptions of the Student’s present levels of performance ensuring that the IEP has a baseline and includes goals and objectives along with appropriate testing accommodations for the Student.

It is therefore ORDERED

That the District insure:

1. The Student be placed in a full-time, co-teaching program with Consultant Teacher Services; This is to be implemented within 20 days of this order;

2. That a CSE be convened within 30 days of this order to determine appropriate Bh esting and that such testing be commenced promptly thereafter; This CSE shall also update the PLEPs, goal objectives and testing accommodations and make appropriate modifications to the existing IEP. The CSE shall also discuss the desirability of a sensory diet and initiate a FBA. The CSE should be advised to consider possible strategies for implementing compensatory services to remediate the twelve months and fifteen days, (fifteen days in 2011; September to June 2011-2012; July and August 2012) plus eight months of limited Consultant Teacher Services (full day less the 1.5 hours provided from September 2012 to April 2013) of services missed. The specific amount of services shall be determined by the CSE but should consider my findings that services were lacking for a portion of 2010-2011 school year and for the full year of 2011-2012 and services were limited during 2012- April 2013. Consideration should be given to providing these services on weekends and school vacations, to accommodate the Student’s schedule. The services need not be provided strictly based upon hours lost but rather upon an informed consensus of what is required to make the Student whole. The time frame for provision of services should not exceed thirty months.

3. That a second CSE meeting be convened following the conclusion of the ffiievaluation, no later than 60 days from this order, to discuss the WB evaluation and to determine if services are needed and to appropriately implement such services if needed. At this CSE meeting with input from the full-time Consultant Teacher, the CSE shall determine a preliminary plan to implement compensatory services for the Student. Services should begin forthwith.

4. That the CSE shall meet after 120 days to review the plan for the provision of compensatory services and assess the efficacy of such services. Again input from the Consultant teacher should be sought with due caution that the Student is not overwhelmed. A subcommittee shall be designated to monitor the provision of compensatory education and should meet at least one time each six months (The regularly scheduled annual reviews are included in this requirement) until the service plan is completed.

4. That the District reimburse the Parents for tuition costs in the amount of 75% of their expenditures for daycare during the summer of 2011, not to exceed $405.00 upon the presentation of properly receipted invoices. Payment is to be made within 30 days following the Parents’ presentation of the invoices.

Dated: March 6, 2013

/s

Martin Kehoe, II]

Impartial Hearing Officer

Exhibits considered - see Addendum

APPEAL RIGHTS

APPEAL TO A STATE REVIEW OFFICER OF THE STATE EDUCATION DEPARTMENT

A review of the decision of a hearing officer rendered in accordance with New York State Rules and Regulations may be obtained by either the parent or the Board of Education by an appeal to a State Review Officer of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of part 279 of Title 8 of The New York State Code of Rules and Regulations. The written decision of the State review Officer, a copy of which will be mailed to the parent and the Board of Education, shall be final, provided that either party may seek Judicial Review by means of a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.

Title 8 NYCRR § 279.2 Notice of intention to seek review.

(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b) 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.

(c) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.

RP)

K.B., on behalf of M.B. v. Buffalo City School District

Parent Exhibits

Exhibit | Description Date Pages

A Letter trom IHO Kehoe to Counsel (scheduling 6/1/12 Z phone conference)

B Notice of Appointment of IHO Kehoe 5$/31/12 L 4

C Letter from Parent counsel to District counsel 4/9/12 2 (enclosing records from D Notice of Appointment of [HO Flame 1/17/12 l

E _| Committee on Special Education Ineligibility 9/30/11 2

Document

F Preschool IEP Undated 9

G Prior Written Notice — Proposed Initial Eligibility 6/25/12 3 for Special Education and Request for Consent :

H | CSE/Sub-CSE Meeting Attendance and 9/30/11 l Comment Sheet I Related Service Evaluation Request Form 9/7/11 | J Letter to Parent — Board of Education Review 6/14/11 | K CSE Meeting Attendance 9/14/11 I L Notice of CSE Meeting to Parent 3/9/11 2 M Letter from District to Parent - CPSE Parent 1/6/11 a | Reterral and Request Form | oN Consent for [nitial Evaluation with Prior Written Sent: 4/19/12; 4 Notice to Parent Signed: 4/23/12 O Referral to CSE 5/9/11 1 | P CPSE Consent for Services 3/14/11 | Q CPSE Consent for Evaluation 1/7/11 l R CPSE Request for Initial Evaluation from Sent: 1/12/11; 2 Cantalician Center with signed consent trom Signed: 1/7/11 Parent | S | Letter from Parent to CPSE (33 Ash St.) 1/4/11 L | requesting evaluation T Student Evaluation Report from i first Undated 2 marking period 2011-12 school year U Student Evaluation Report from Undated 2 | (second marking period 2011-12 school year) | Vv Kindergarten Progress Report (2011-12 school Undated 2 year) W Note from RR Kindergarten Undated I - teacher) re: Student’s difficulties X~_| Notice from re: February 16, 2912 2/16/12 L | ' conference between school and Parent y | Se 4/24/12 | | from Z | ee) ME Summer Summer 2011 1 | | Quarterlies | | AA | Progress Report of Measurable Annual Goals Summer 2011 S . | BB Email Exchange between District Counsel and 3/27/12 3 | | [HO Flame, re: April hearing dates; completion | | | of IEEs | | CC | Email Exchange between Parent Counsel, District | 2/20/12, 2/22/12 | | | Counsel, and IHO Flame, re: IEEs | | DD | Email Exchange between Parent Counsel, District 3/29/12 | 3 | | | Counsel, and [HO Flame, re: adjournment of | | | April hearing dates | | | | EE | Emails from Parent Counsel to District Counsel | 2/8/12, 2/13/12 2 | | FF | Email from [HO Flame and Response from | 2/29/12, 2/30/12 | | | District Counsel, re: recusal of IHO Flame i | ' GG | Email Exchange Between District Counsel, | 4/25/12, 4/26/12 | 3 | | Parent Counsel and IHO Flame, re: service and | | acceptance of First Amended Complaint | HH Email Exchange between Parent Counsel, District | 6/1/12, 6/18/12 1 | Counsel and [HO Kehoe, re: Second Amended | | Complaint | | ‘ | CIE | Audio Tape from CSE Meeting 9/30/12 | N/A | <) at JJ oy Audio Tape trom CSE Meeting (Tape |) 5/24/12,6H2H2 | N/A on __ke \ Audio Tape from CSE Meeting (Tape 2) 6/12/12 N/A linical ummary 9/4/12 7 tl

DISTRICT EXHIBIT LIST

Margaret Becker, DOB 6-14-2006

EXHIBIT # DESCRIPTION

10. Due Process Complaint January 10, 2012 Letter from District to parent January 12, 2012 District Answer January 18, 2012 Amended Due Process Complaint 11 April 26, 2012 District Answer May 3, 2012 Amended Due Process Complaint y EF June 27, 2012 District Answer June 29, 2012 Authorization for ind. eval. February 2, 2012 Authorization for Ind. Psych Eval. February 3, 2012 Prior Written Notice re Consent for Reevaluation September 6, 2012 January 31, 2012 12 Parent Referral to CPSE January 10, 2011 DOE

13. Attempts to obtain agreement Various dates DOE

14. IEP Planning Worksheet, is September 26, 2011 ‘ DOE

15. Pre-School IEP March 14, 2011 DOE

16. IEP, September 30, 2011 DOE

17. Psychological Eval May 31, 2012 DOE

18. Educational Assessment February 1, 2011 19 val January 26, 2011 20 Social History February 2, 2011 DOE

21. Evaluation Summary Report February 23, 2011 22 eer February 7, 2011 23.. February 7, 2011 DOE

24. Psychological Eval January 28, 2011 25 val iz March 29, 2012 DOE

26. Psychological Eval March, 2012 DOE

27. Prior Written Notice September 30, 2011 DOE

28. CSE Meeting Notice September 20, 2011 DOE

29. CSE Meeting Notice September 19, 2011 30 Consent to Reevaluate June 24, 2011 DOE

31. Letter from District to Parent July 25, 2012 DOE

32. Consent to begin Special Education June 25, 2012 DOE

33. IEP, June 12, 2012 DOE

34. Signed Consent Form January 31, 2012 DOE

35. CSE Meeting Notice July 16, 2012 DOE

36. Email from District to Parent June 18, 2012 37 Signed Consent forms May 24, 2012 DOE

38. CSE Meeting Notice May 14, 2012 DOE

39. Prior Written Notice May 2, 2012 40 Psycho-Ed Eval September 19, 2011 41 September 22, 2011 42 Auditory Processing Eval March 8, 2012 43 Speech Eval April 6, 2012 - 44 2010-2011 School Calendar - 45 Resolution Session Attendance January 31, 2012 DOE

r. 46 > Resolution Session Attendance May 4, 2012 ge. a7 v Resolution Session Attendance ia. a tN July 13, 2012 is. Email from Parent iim June 18, 2012

r. Student Placement Notification April 19, 2012 49 pages

50 AUDIO RECORDING

%1 PARENTS BRIEF

52 DISTRICT BRIEF