Impartial Hearing Decision

X In the Matter of a Due Process Hearing under the Individuals With Disabilities Education Improvement Act (the “IDEIA”), IHRS Case 20 U.S.C. Section 1400 et. seq., and Section 4404 of the New No. York State Education Law, and Section 504 of the Rehabilitation Act between [Redacted], by her parents, [Redacted] and [Redacted], Petitioners, -against- THE [Redacted] CENTRAL SCHOOL

DISTRICT,

Respondent. X

FINDINGS OF FACT AND DECISION

Mindy G. Wolman, Esq.

Impartial Hearing Officer

Record Close Date: November 15, 2013

Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

On December 21, 2012, [Redacted] and [Redacted], the parents (the “Parents”) of [Redacted] (the “Student”), filed a request for an impartial hearing (the “Due Process Complaint” or “Complaint”) against the [Redacted] Central School District (the “District”) under the Individuals with Disabilities Education Improvement Act (the "IDEIA," also referred to at the “IDEA”), 20 U.S.C. §1415(f)(1), §4404 of the New York State Education Law (the “NYS Education Law”), and §504 of the Rehabilitation Act (“Section 504") (D. Ex. 1). I was appointed as hearing officer on February 27, 2013.

The District responded to the Complaint on January 7, 2013 (D.Ex. 2).The parties opted to pursue mediation, and the IDEA timelines were put “on hold” until March 8, 2013. A pre-hearing conference was held on March 14, 2013 (IHO Ex. I), and the due process complaint was amended on May 30, 2013 (the “Amended Complaint”) (P. Ex ^[1]A). The District responded to the Amended Complaint on June 7, 2013 (D. Ex. 42), and hearings went forward on June 10, 2013, June 11, 2013, June 12, 2013, June 13, 2013, July 8, 2013, July 9, 2013, and July 30, 2013.

The compliance date for issuing a decision in this proceeding was extended on several occasions (see IHO Exs. I, II, III, XI, XIII, XIV, XV, and XVI ).1 In lieu of closing statements on the record, the parties submitted post-hearing memoranda of law (IHO Exs. XVII and XVIII).

Lists of the persons who attended the hearing and the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

[Redacted] is a [Redacted] year-old female student who is classified as a student with a disability [Redacted] .She is entitled to receive special education services on a twelve-month school year basis. Her classification and eligibility for special education supports and services is not in dispute. The Parents request a variety of forms of relief in this proceeding. They assert that the District failed to offer the Student a free appropriate public education (“FAPE”) for the latter part of The final compliance date extension in this case extended the compliance date for issuing a decision to November 24, 2013 (IHO Ex. XVI). November 24, 2013 is a Sunday. As such, pursuant to the NYS General Construction Law §25-A, the actual extended compliance day for issuing a decision in this proceeding is November 25, 2013. The issuance of the decision was delayed beyond the extended compliance date due to IHO medical issues. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District the 2010-2011 school year and for the 2011-2012, 2012-2013, and 2013-2014 school years.2 The Student attended District schools during the 2010-2011, 2011-2012, and 2012-2013 school years. Her IEPs have consistently listed her eligibility for services on a twelve month (extended school year) basis. There is no dispute about the Student’s need for twelve-month services.

The Student has a history of global developmental delays. She was diagnosed with [Redacted] at some point prior to 2005, however that diagnosis has recently been called into question. Her cognitive functioning is in the [Redacted] range of [Redacted] .Test results reveal an [Redacted] and [Redacted] . The Student has significant [Redacted] delays, and [Redacted] and [Redacted] delays. She also has deficits in [Redacted] and [Redacted] .She has difficulty [Redacted] and [Redacted] . Her reading and math skills are [Redacted] .There is no dispute about the Student’s delays or about the fact that her various deficit areas severely impact her educational performance. The Parents contend that the Student’s educational performance is also adversely impacted by [Redacted] issues and [Redacted] issues, and that the District has failed to address these issues. The Parents also contend that the District failed to adequately address the Student’s severe [Redacted] and [Redacted] delays, [Redacted] issues, [Redacted] deficits, and [Redacted] needs. They assert that the Student has remained at a [Redacted] grade reading level for several years, that she has actually regressed in some areas, and that she has been [Redacted]ly [Redacted] and denied the opportunity to interact with appropriate peers. The District maintains that the Student has made progress in all domains, and that it adequately met the Students’ various educational and [Redacted] needs. It maintains that the Student does not require [Redacted] therapy as part of her special education program.

The Amended Complaint seeks an order directing that the District immediately place the Student in an appropriate program for the 2013-2014 school year. The program that has been identified by the Parents as an appropriate program is the residential program at the [Redacted]

The Parents claims herein do not include a claim for relief for a FAPE deprivation during the first four months of the 2010-2011 school year. Since the due process complaint was filed on December 21, 2012, the statute of limitations bars the assertion of claims arising prior to December 21, 2010. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District School in [Redacted] (“[Redacted]”). In addition to the request for immediate placement, the Parents unilaterally placed the Student at [Redacted] for the Summer of 2013 and seek tuition reimbursement for the cost of that placement.

The Parents also request that the District be directed to provide the Student with appropriate [Redacted] services, appropriate [Redacted] services, and appropriate [Redacted] services and devices. They seek compensatory services/compensatory education for the District’s failure to provide the Student with an appropriate special education program and services during the 2010- 2011, 2011-2012, and 2013-2013 school years.

The Parents raise a variety of substantive and procedural challenges in this proceeding. The Parents maintain, inter alia, that the District acted in bad faith and excluded the Parents from the Individualized Education Program (“IEP”) development process, and that the Student’s IEPs did not include appropriate services and appropriate long-term goals and short-term objectives. They assert that the Student’s IEPs should have included [Redacted] , additional [Redacted] therapy, and [Redacted] and services. They also assert that the Student’s IEPs did not adequately address the Students [Redacted] deficits and that removing the [Redacted] group from the Student’s IEP constituted a deprivation of FAPE. The Parents maintain that the Student’s placement during each of theses school years was not appropriate and that she was not suitably placed based on her [Redacted], academic, and management needs.

The Parents also maintain that [Redacted] is an appropriate placement for the Student and that it will provide her with necessary [Redacted] opportunities and with the specific services that she needs to develop her [Redacted] skills. They assert that [Redacted] is an appropriate program in the least restrictive environment (“LRE”) for the Student and that the program will address of her special education needs.

The Parents maintain that they are entitled to tuition reimbursement for the cost of the Summer 2013 [Redacted] placement because the District failed to provider with a FAPE, the [Redacted] program is appropriate, and equitable factors support their claim. They also assert that the Student is entitled to compensatory education due to the District’s “repeated denial of FAPE.” Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District The District maintains that the Parents’ request for relief should be denied in its entirety. It asserts that the Parents meaningfully participated in the development of the Student’s IEPS, that the District offered the Student a FAPE for all the school years in question, that the Student did not need therapy, and that the levels of services in the IEPs was appropriate. The District also asserts that the Parents are not entitled to tuition reimbursement for the cost of the Summer 2013 [Redacted] placement because [Redacted] is not an appropriate placement and because equitable factors do not favor reimbursement.

The parties’ legal and factual arguments, which are more fully set forth in their post-hearing memoranda of law (IHO Exs. XVII and XVIII), will be discussed infra.

Both parties submitted extensive documentary evidence packages at the hearing. The District presented the testimony of the following individuals: [Redacted] (special education teacher), [Redacted] (speech therapist), [Redacted] (occupational therapist), [Redacted] (Academic Administrator for Special Education), [Redacted] (Director of Special Education), [Redacted] (Academic Administrator for Special Education), and [Redacted], Psy.D. (psychologist). The Parents presented the testimony of the following individuals: [Redacted] (the Student’s mother), [Redacted] (Director of Admissions), [Redacted] (Director of Special Services), [Redacted] (teacher), and [Redacted] (consultant). Program Recommendations The District’s Committee on Special Education (“CSE”) convened more than one meeting for each of the foregoing school years, and changes were made to the Student’s IEP as a result of some of those meetings. Changes were also made to the IEPs, with parental consent, without convening CSE meetings. As such, there are multiple IEPs for each of the school years. In addition to the IEPs that were implemented for the Student, the hearing record includes drafts of the IEPs (which were offered into evidence as support of the Parents’ assertion that the CSE’s recommendations were pre-determined without parental input).

The 2010-2011 School Year

As of the beginning of the 2010-2011 school year, the Student was placed in a [Redacted] Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District [Redacted] Skills class at the [Redacted] Middle School (also known as a [Redacted] Skills , “ [Redacted] ” class), with [Redacted] ( ) for five 40-minute sessions per two week period, one 30-minute session per week of [Redacted] [Redacted] , and two 40-minute sessions per week of [Redacted] therapy (D. Ex. 7). The Student’s recommended summer extended school year (“ESY”) services for the 2010-2011 school year included placement in a [Redacted] [Redacted] class, with one session per week of [Redacted] [Redacted] therapy. The Student’s April 1, 2010 IEP, which was in effect when school started in September of 2010, also listed the following modifications, accommodations, and supplementary aids and services: check for understanding, modified assignments, prompting to stay on task, reteaching, frequent communication with parents, visual schedule, and key for locker. The ( ) devices and services listed in the IEP included [Redacted] (to support [Redacted] such as [Redacted] and [Redacted] ) access to [Redacted], and a [Redacted] .On September 29, 2010 the Student’s IEP was amended without a meeting to add three one-hour consultations per year with a teacher of the [Redacted] (“ [Redacted] ”) (D. Ex. 9). In addition, the Student’s mandate was changed from [Redacted] to [Redacted] . On January 8, 2011, the Student’s 2010-2011 program was amended without a meeting to add [Redacted] reading (D. Ex. 10). The January 8, 2011 IEP listed special class reading in a 15:1 ratio, five times every other day for 40 minute sessions.

The 2011-2012 School Year

The Student’s IEP for the 2011-2012 school year was prepared at a CSE meeting held on April 29, 2011 (D. Ex. 14). The IEP recommended September through June placement in a 12:1+4 [Redacted] (“ [Redacted] ”) class,3 [Redacted] for 40 minutes five times every two weeks, [Redacted] special class for reading for 40 minutes five times every two weeks, and [Redacted] therapy two times per week in a group of [Redacted] . It did not include the [Redacted] training or the [Redacted] consult that had been included in the Student’s prior IEP. The supplementary aids and services and program modifications/accommodations remained unchanged from the prior year.

The [Redacted] class was reportedly the same type of class as the 2010-2011 [Redacted] class (the name of the program changed over time (Tr. 45). Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District The services listed access to the computer in order to work on [Redacted] skills with programs such as [Redacted] and [Redacted] ). The Summer ESY program for 2011-2012 was placement in a [Redacted] [Redacted] class with one 30-minute session per week of [Redacted] [Redacted] therapy.

The CSE reconvened, per the Parents’ request, on October 12, 2011 (D. Ex. 18) to discuss a variety of issues, including a recent [Redacted] evaluation obtained by the Parents and to discuss the CSE’s removal of a [Redacted] (the [Redacted] group) from the Student’s IEP (D. Ex. 18). The CSE denied the Parents’ request for a [Redacted] , [Redacted] services, and [Redacted] services, finding that [Redacted] and [Redacted] services were “not indicated at this time” and that [Redacted] would be worked on within the [Redacted] program (D. Ex. 18 at 19).

The CSE convened another meeting on February 16, 2012, at which time the CSE recommended additional evaluations ( [Redacted] , [Redacted] , an evaluation for [Redacted], and an evaluation of the Student’s [Redacted] curriculum) (D. Ex. 19 at 17).

The 2012-2013 School Year

The CSE convened a meeting to make recommendations for the Student’s 2012-2013 school year on April 27, 2012 (D. Ex. 25). The IEP prepared as a result of that meeting recommended continued placement in a [Redacted] [Redacted] class at the [Redacted] Middle School, with [Redacted] for 40-minutes five times every two weeks, [Redacted] special class [Redacted] ( [Redacted] for 40-minutes per day, and small group [Redacted] therapy [Redacted] times per [Redacted] for 30-minutes. The IEP continued the prior supplementary aids and services and program modifications/accommodations, and added the use to speech software (such as [Redacted] ). The CSE changed “ [Redacted] to computer” to “ [Redacted] of computer). The IEP also included an [Redacted] consult for one hour sessions twice a year, a monthly one hour [Redacted] consult, and a quarterly 40-minute educational consult. The 2012-2013 ESY Summer program included placement in a [Redacted] [Redacted] class with one 30-minute session per week of small group [Redacted] therapy.

On June 6, 2012, the CSE held another meeting, at which time the Student’s small group Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District [Redacted] services were increased to eight times per month (D. Ex. 28). The June 6, 2012 IEP also included several additional program modifications/accommodations. The CSE convened another meeting on November 29, 2012, at which time the Student’s small group [Redacted] therapy was increased to twice per week, the [Redacted] was increased to twice a week for 30-minute sessions, and the special class [Redacted] class size was reduced to [Redacted] (D Ex. 30). On January 8, 2013, the CSE convened a program review meeting (D. Ex. 32). The meeting notes and notice of the CSE’s recommendations listed changing the Student’s direct and indirect (consult) [Redacted] services to 40 minute sessions (D. Ex. 32 at 27 and 22), however the IEP itself continued to recommend 30-minute sessions (D. Ex. 32 at 1,16, 18).

The 2013-2014 School Year

The CSE convened an annual review on May 14, 2013 in order to make recommendations for the 2013-2014 school year. The CSE recommended placement in a [Redacted] [Redacted] class with one 30-minute session per week of small group [Redacted] therapy for ESY services for the Summer of 2013. The CSE recommended placement in [Redacted] special class at the High School [Redacted] for September 2013, with a daily 40-minute [Redacted] special [Redacted] class, [Redacted] APE for 40 minutes for five sessions every two weeks, small group [Redacted] therapy twice per week for 30 minute sessions. The May 14, 2013 IEP included a variety of supplementary aids/services and program modifications/accommodations. The IEP also included the use of a computer for [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] , two hourly [Redacted] consults per year for staff to support “ [Redacted] [Redacted] [Redacted] designed to support [the Student’s] [Redacted] [Redacted] [Redacted] [Redacted] needs” (D. Ex. 39 at 15), eight 15-minute [Redacted] consults per year, two 30-minute [Redacted] consults per week, and a 30-minute daily [Redacted] group in the classroom.

The CSE’s various program recommendations for the school years at issue herein also changed the extent to which the Student would participate in general education classes and programs. The CSE implemented some level of mainstreaming in science and [Redacted] studies, at the Parents’ request, in order to provide the Student with opportunities to interact with typically Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District developing peers. The mainstreaming component of the Student’s special education program was ultimately discontinued (except for participation in lunch and the opportunity to participate in other non-academic school programs) Evaluations

The Student has been extensively evaluated over the course of the last several years. The evaluations included the hearing record and discussed in the testimony of the parties’ respective witnesses includes the following:

• Confidential Evaluation Report, [Redacted] , Ph.D.

(November/December 2005) (P. Ex. 3)

• Summary of Adaptive Scores (March 8, 2008) (P. Ex. 14)

• Re-evaluation (January 14, 2009) (D. Ex. 3)

• Woodcock-Johnson III Tests of Achievement (reading assessment by [Redacted])

(October 9, 2009) (D. Ex. 8 at 3)

• Comprehensive Evaluation by Dr. [Redacted] (October 21, 2009) (D. Ex. 5)

• Testing (March 31, 2010), [Redacted] (P. Ex 28)

• Woodcock-Johnson III Tests of Achievement (reading assessment by [Redacted])

(April 12, 2010 (D. Ex 8 at 4)

• Speech Language Peabody Picture Vocabulary 4th Edition Test (PPVT-4) and Expressive One Word Picture Vocabulary Test 4th Edition (EOWPVT-4) (February 2011), by [Redacted], (P. Ex. 37)

• Vision Evaluation by [Redacted] O.D. (August 16, 2011) (D. Ex. 17 at 3-4)

• Therapy Screening (October 19, 2011), [Redacted] [Redacted] Group (P. Ex. 57)

• Therapy Evaluation (December 3, 2012), [Redacted], [Redacted] Group (D. Ex. 31)

• Therapy Evaluation (April 18, 2012) (D. Ex. 20) by [Redacted] , [Redacted] Group

• Student Consultation report (April 19, 2012) (D. Ex. 21) by [Redacted]

, M.S., CCC-SLP/LATS

• Evaluation (April 25, 2012) (D. Ex. 22), by [Redacted];

• Reevaluation Summary, [Redacted], (April 27, 2012) (D. Ex. 23)

• Reevaluation Summary Addendum by [Redacted], undated (D. Ex. 24)

• Reevaluation (August 1 and August 9, 2012), Dr. [Redacted] (D. Ex. 29)

• Therapy Shoulder/Elbow Evaluation (January 18, 2013) (P. Ex. 75)

• Therapy Progress Report/Discharge Note (March 13, 2013) (P. Ex. 78) Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

• Report (summary of prior testing data) (May 12, 2013) (P. Ex.81; D. Ex. 38)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive, written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189- 90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132) (citations omitted).

A school district need not “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199), however a school district must provide “an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'” (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.1997]; see Rowley, 458 U.S. at 192).

In addition, an IEP must reflect the results of current evaluations. A school district is Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District obligated to perform an evaluation that is “sufficiently comprehensive to identify all of the student's special education needs” (8 NYCRR 200.4(b)(6)(ix). It must utilize “technically sound instruments” to “assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (8 NYCRR 200.4(b)(6)(x).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

It is against this backdrop that I must consider the various challenges raised by the Parents in this proceeding. Parental Input

The Parent maintains that the District “totally ignores parental input” and “systematically engages in due process violations” (IHO Ex. XVII at 21-24). Having considered the testimony and documentary evidence presented at the hearing, I must reject these contentions. While it is clear that there are minimal differences between many of the draft IEPs and the final IEPs that were prepared, it is also clear from the testimony at the hearing that the Parents were consulted about and had input in the preparation of the draft IEPs. They also had input at the CSE meetings. Although the CSE did not agree to implement all of the program and service changes requested by the Parents, many of the Parents’ requested changes were in fact implemented. In addition, some of the CSE’s proposed changes were not implemented because the Parents objected to the changes.

Providing parents with the opportunity to meaningfully participate in the development of their child’s IEP does not require that District provide every service requested by the Parents or make every program/placement change they request. The Parents participated in the CSE meetings and in the pre-meeting IEP-draft preparation process. The CSE agreed to some, but not all, of the Parents’ requests. Although the CSE rejected some of the Parents’ requests, it did consider and discuss the requests with the Parents. The CSE also considered evaluations obtained by the Parents. The Parents’ input was not ignored. Although I have concerns about some of the District policies Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

(such as reducing related services by [Redacted] % during the summer), the record does not support a finding of a systemic practice of due process violations. Moreover, since my jurisdiction is limited to the facts related to this particular Student during the school years in question, I do not think that I have the jurisdiction (or the hearing record necessary) to find that there has been a systemic (or systematic) pattern of due process violations. [Redacted] Therapy

The Parents challenge the CSE’s refusal to provide direct [Redacted] therapy services to the Student. The District maintains that the Student did not require direct [Redacted] therapy services during the 2010-2011 2011-2012, and 2012-2013 school years, and that she does not need such services during the current school year. In support of its position the District offered witness testimony, as well as an April 18, 2012 [Redacted] therapy evaluation (which reported that the Student “demonstrates full participation and functional [Redacted] skills in her academic environment with her current modifications in place,” D. Ex. 20 at 3). There was also an October 11, 2011 [Redacted] screening (which reported that the Student was “currently demonstrating functional [Redacted] , [Redacted] , and [Redacted] skills in the classroom,” P. Ex. 57 at 3).

The District maintains that the Student does not require direct [Redacted] therapy because she can function independently in the classroom and that she does not require such services in order to benefit from instruction (IHO Exh. XVIII at 24).

[Redacted] therapy services are defined in the NYS regulations as follows:

[Redacted] therapy means the [Redacted] [Redacted] . . . . ..

[Redacted] [Redacted] [Redacted] 8 NYC RR [Redacted]

The CSE’s 2011 and 2012 [Redacted] reports were limited to “school related [Redacted] and [Redacted] tasks” ( [Redacted] , [Redacted] , and [Redacted] [Redacted] [Redacted] ) (P. Ex.57; D. Ex. 20). The CSE discontinued direct [Redacted] services based on the Student’s ability to perform [Redacted] and [Redacted] in the classroom.

The Student received direct [Redacted] services during the 2007-2008 and 2008-2009 school years. Her [Redacted] services were changed to indirect (“consultation”) for the 2009-2010 Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District school year. During the 2007-2008 school year, the Student’s IEPs mandated that she receive two 30-minute sessions per week of [Redacted] [Redacted] therapy (P. Exs. 5, 6, 12, and 16). The Student’s [Redacted] therapy was changed to [Redacted] (two 30-minute sessions per week) for the 2008-2009 school year (D. Ex. 6). Her [Redacted] therapy goals during those school years included “ [Redacted] [Redacted] [Redacted] [Redacted] . . . . [Redacted] [Redacted] ,” “ [Redacted] [Redacted] . . . . [Redacted] [Redacted] . . . and [Redacted] [Redacted] . . . [Redacted] [Redacted] ,” “ [Redacted] [Redacted] . . . [Redacted] [Redacted] ,” “ [Redacted] [Redacted] . . . . [Redacted] [Redacted] , “ [Redacted] [Redacted] . . . [Redacted] [Redacted], “ [Redacted] [Redacted] . . . . [Redacted] [Redacted] , and “ [Redacted] [Redacted] . . . . [Redacted] [Redacted]” (P. Exs. 5, 6, 12, 20, and 21).

Prior to the discontinuation of [Redacted] therapy services, the Student’s IEPs provided that she required [Redacted] therapy “to address [Redacted] [Redacted] . . . . [Redacted] [Redacted] (P. Ex. 5 at 6; P. Ex. 21 at 8). The IEPs refer to difficulties in [Redacted] [Redacted] and [Redacted] [Redacted] skills and that [Redacted] therapy is needed to “continue to provide support and instruction in developing these skills to the best of [Student’s] ability. P. Ex. 5 at 6; P. Ex. 21at 7-8). The skills that she was working on at the time included [Redacted] , [Redacted] , [Redacted] , [Redacted] b=abd [Redacted] , [Redacted] , [Redacted] , [Redacted] ad [Redacted], [Redacted] , [Redacted] , [Redacted] , [Redacted] , [Redacted] , and [Redacted] skills (P. Ex 5 at 6; P. Ex. 21 at 7-8).

In 2009, the CSE’s standard for [Redacted] therapy for the Student changed from “ [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] ” to “ [Redacted] [Redacted] [Redacted] [Redacted] .” The scope of the deficits addressed changed from direct services to address fi [Redacted] , [Redacted] , and [Redacted] [Redacted] to a consult to “monitor [Redacted] [Redacted] [Redacted] skills” (D. Ex. 6 at 7). Her 2010-2011 and 2011- 2012 [Redacted] therapy ( [Redacted] ) needs were described as the need to “practice [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted]” (D. Ex. 7 at 6; D. Ex. 14 at 5 ). Her 2012-2013 IEP indicted that “there are no [Redacted] [Redacted] needs” (D. Ex. 25 at 7). Her Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

2013-2014 IEP listed an [Redacted] need ( [Redacted] [Redacted] , but no therapy need (D. Ex. 39 at 9).

The CSE’s decision to provide an therapy consult rather than direct [Redacted] therapy services was not appropriate. In basing its decision on the assertion that the Student was functional in the classroom, the CSE applied an incorrect standard. The Student continued to be entitled to services to develop her skills to the best of her ability. In addition, the CSE inappropriately removed [Redacted] , [Redacted] , and [Redacted] [Redacted] deficits from the scope of issues that needed to be addressed by [Redacted] therapy. The CSE’s 2010-2011, 2011-2012, 2012-2013, and 2013-2014 program recommendations for the Student were substantively deficient because the IEPs for those school years did not address the Student’s [Redacted] therapy needs. Instead of providing her with direct [Redacted] therapy to address those needs and allow the Student to make progress in [Redacted] [Redacted] skills, [Redacted] skills, [Redacted] skills, and [Redacted] skills, the CSE recommended that the Student receive an [Redacted] therapy consult in order to be provided with accommodations for a subset of those needs. The CSE did not obtain an adequate evaluation of the full-range of the Student’s [Redacted] therapy needs.

The CSE did not consider whether or not the Student’s [Redacted] and [Redacted] [Redacted] issues, [Redacted] [Redacted] [Redacted] [Redacted] ,and [Redacted] / [Redacted] / [Redacted] / [Redacted] deficits could be improved for better school function. There is no evidence to suggest that the Student’s skills in these areas had reached a plateau. By all accounts, she had been continuing to make progress in these areas prior to termination of direct [Redacted] therapy services. The Student continued to have problems with [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] tasks. Although providing her with an accommodation (use of the [Redacted] for certain [Redacted] tasks) was certainly appropriate, the availability of such an accommodation did not negate the need to continued [Redacted] therapy services to increase the Student’s [Redacted] [Redacted] and [Redacted] for [Redacted] work.

The Parents’ request that the District be directed to provide the Student with [Redacted] Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District therapy services must, therefore, be granted. The District’s [Redacted] therapy evaluations covered only a subset of the Student’s [Redacted] therapy needs. A comprehensive evaluation needs to be performed in order to determine the appropriate level of [Redacted] therapy services and to develop appropriate goals based on the Student’s current [Redacted] therapy needs. Based on the level of services that the Student was receiving prior to the discontinuation of direct [Redacted] therapy services, the Student should receive at least two 30-minute sessions per week of [Redacted] therapy services. In addition, since I find that the [Redacted] Group evaluations performed by Ms. [Redacted] were inadequate, the new evaluation needs to be performed by a different agency and therapist. [Redacted]/[Redacted] Opportunities

The Parents maintain that the Student’s IEPs and classroom placements did not adequately address the Student’s [Redacted] deficits and [Redacted] needs during the 2010-2011, 2011-2012, 2012-2013, and 2013-2014 school years. They maintain that the Student’s IEP did not include appropriate services or goals to address those needs. In addition, the Parents maintain that the District did not provide the Student with an appropriate [Redacted] environment. The District maintains that it continuously provided the Student with a FAPE during these school years.

Prior to the 2010-2011 school the Student’s IEPs addressed her [Redacted] deficits through [Redacted], as a related service, provided by [Redacted] worker. At the beginning of the 2007-2008 school year, the Student’s IEP included 30-minute session per week of [Redacted] [Redacted], which was increased to two 30-minute sessions per week in March of 2008 (P. Exs. 5, 6, 12, ad 16). On September 28, 2008, the Student’s [Redacted]/[Redacted] work IEP mandate was changed to one 30-minute session per month (P. Ex. 21).

The District notes that the Student received daily [Redacted] training as part of the [Redacted] class for at least 30 minutes per day during the 2011-2012 and 2012-2013 school years (IHO Ex. XVIII at 35). The [Redacted] group was listed in the Student’s 2012-2013 IEP (D. Ex. 28 at 12). [Redacted] were also addressed during the 2010-2011 school year. [Redacted] goals were included in the IEPs for those three years (see D. Ex. 7 at 10-11, 6 at 14-16; D. Ex 14 at 7, D. Ex. 6- Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

7). Based on the IEPS and upon the testimony about the [Redacted] component of the [Redacted] program during the 2010-2011, 2012-2012, and 2012-2013 school years, I find that the CSE’s recommended program and placements for those three years was reasonably calculated to enable the Student to make meaningful progress in the [Redacted] domain as of the time that the recommendations were made. In addition, the District worked cooperatively with the Parents during those years in a good faith attempt to provide the Student with appropriate peer interactions (varying levels of participation in the general education environment, the after-school program, etc).

The CSE’s recommendations for the 2013-2014 school year requires a separate analysis. Since the Parents opted to unilaterally place the Student in [Redacted] as of the beginning of the 2013-2014 school year, starting in July of 2014, I am limited to considering the four corners of the IEP in determinating whether or not the District offered the Student a FAPE [a student’s “IEP must be evaluated prospectively as of the time of its drafting . . . retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding.” R.E. v. NYC Dep’t of Educ., 694 F.2d 167, 186 (2d Cir. 2012)].

The Student did not master her 2011-2012 [Redacted] goal (to “be able to work through problems with other without walking away”) (D. Ex. 36 at 5). She mastered one of her 2012-2013 [Redacted] goals that included adult support (“navigate difficult [Redacted] situations . . with minimal adult support,” (D Ex. 37 at 20) and mastered a goal to “follow the [Redacted] rules during a conversation” (which included looking for “nonverbal cues such as facial expressions and body language when speaking (D. Ex 37 at 21), but did not master the goal that by “using prior knowledge, [Student] will start a conversation based on that persons’ interest” (D. Ex. 37 at 22-23). She mastered some of the short-term objectives of the latter goal which was to perform the task with adult prompting, but did not master it independently (D. Ex. 37 at 22, 23).

The CSE’s 2013-2014 IEP for the Student (D. Ex. 39) includes the following [Redacted] goal: “[Student] will learn and utilize strategies (stop and think, observe physical and verbal cues) to interpret [Redacted] situations” (D. Ex. 39 at 13). The short term objectives for this goal include: Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

“[Student] still stop and think, is this person talking to or about me, before she reacts to a [Redacted] situation,” [Student] will attend to the tone of voice (verbal cues) and body language (physical cues) of the person communicating to identify the communicative intent of the conversation” and “[Student] will respond to the situation appropriately (aligned with communicative intent” (D. Ex. 39 at 13). The IEP lists a daily 30-minute [Redacted] group in the classroom (D. Ex. 39 at 15). This was the same program/service that was used to address the Student’s [Redacted] issues during the 2011-2012 and 2012-2013 school years. Given that the daily 30-minute [Redacted] group did not enable the Student to achieve independent mastery of her 2011-2012 and 2012-2013 [Redacted] goals, continuing the same level of service was not reasonably calculated to enable the Student to achieve the independent mastery of her 2013-2014 [Redacted] goal. In addition, the daily [Redacted] group in during the 2013-2014 school year would have a lower level of staff support than the [Redacted] group in prior years (the CSE changed the Student’s class ratio from [Redacted] to [Redacted] ). Moreover, by the time the CSE convened to make the Student’s 2013-2014 program recommendations in May of 2013, it had become clear that the Student was experiencing increasing [Redacted] isolation in the District’s program and was unable to make friends. The single [Redacted]/ [Redacted] goal contained in the Student’s IEP was not sufficient, as it addressed only a subset of the Student’s [Redacted] issues. In light of the Student’s [Redacted] delays, [Redacted] delays, [Redacted] issues and [Redacted] , she needs to have her [Redacted] addressed in a small group setting (and in part individually). The IEP does not specify a group size for the [Redacted] group (D. Ex. 39 at 15). Moreover, a [Redacted] group run by a special education teacher (as contemplated by the IEP) is not sufficient. The Student requires individual and group [Redacted] in order to address her [Redacted] deficits and to make meaningful progress in the remediation of those deficits.

Based on the foregoing, I find that the CSE’s program recommendations for the 2013-2014 school year did not adequately address the Student’s [Redacted] deficits. change in [Redacted] program. [Redacted] [Redacted] Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

An device is “any item, piece of equipment, or product system . . . that is used to increase, maintain, or improve the functional capabilities of a student with a disability. . .” 8 NYCRR §2001.(e). “ service means any service that directly assists a student with a disability in the selection, acquisition, or use of an assistive technology device. The term includes . . . . training or technical assistance for a student with a disability. . .” 8 NYCRR §2001.(f)(5).

The Student’s IEPs for the school years at issue herein contains ( [Redacted] [Redacted] [Redacted] [Redacted], etc.) However, the IEPs do not include any direct services. According to the District’s evaluation, “[Student] has demonstrated [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] skills. She should continue to work on developing her skills” (D. Ex. 21 at 4). The evaluator also recommended access to [Redacted] [Redacted] , access to [Redacted] [Redacted] [Redacted] , use of [Redacted] [Redacted] software, a trial of [Redacted] software, [Redacted] , and two hours of [Redacted] consultation to “assist [the ] team in trial with [Redacted] technology and evaluating results” (D. Ex. 21 at 4). The evaluator did not recommend any direct services.

However, I find that the failure to include direct services in the Student’s IEPs was not appropriate. An IEP providing that a substantially [Redacted] [Redacted] and [Redacted] [Redacted] student have “access to [Redacted] [Redacted] ” to develop needed skills is insufficient. The Student cannot learn by osmosis. Having access to (or the use of) a [Redacted] and [Redacted] [Redacted] software is not going to provide her with [Redacted] skills. Affirmative steps must be taken to actually teach her those skills and to provide her with the opportunity to practice them. As such, the development of the Student’s [Redacted] skills needed to be specifically included in the Student’s special education program. In other words, her IEP should have included appropriate goals and the services that are necessary for her to achieve those goals.

Since the CSE recommended that the Student utilize a computer for written assignments, the should have also recommended that the Student be taught the skills that she needs in order to utilize Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District the computer effectively and efficiently. The development of those skills must be part of the Student’s program – which means services and goals related to those services. In accordance with 8 NYCRR §2001.(f)(5), the Student’s IEP should have included services to directly assist the Student (via training or technical assistance) in the use of . [Redacted] and [Redacted] Services The Student’s [Redacted] therapy services have been reduced over the course of the last few years, and the Parents maintain that she has not made meaningful progress and has, in fact, experienced regression in some areas. The District asserts that the Student’s IEP mandates have been appropriate and that she has made meaningful progress.

During the 2007-2008 through 2013-2014 school years, the Student’s IEP mandates were as follows:

School Year 1:1 services Group services

2007-2008 (P. Ex. 7) [Redacted] [Redacted] 2008-2009 (P. Ex. 20) [Redacted] [Redacted] 2009-2010 (D. Ex. 6) [Redacted] [Redacted] 2010-2011 (D. Ex. 7) [Redacted] 2011-2012 (D. Ex 14) [Redacted] 2012-2013 (D.Ex. 28) [Redacted] 2013-2014 (D.Ex. 39) [Redacted]

The Student’s 2012-2013 services included indirect services in the form of four [Redacted] consultations per month. Her 2013-2014 IEP included indirect services in the form of two 30-minute consultations per week. The CSE reduced the Student’s summer [Redacted] services in [Redacted] each year. The Parents maintain that the levels of September through June services were insufficient starting as of the 2010-2011 school year, that it was inappropriate to reduce services for the summer programs, and that the District improperly switched to a [Redacted] model ( [Redacted] weeks of direct service followed by [Redacted] of indirect consult service). Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District The District has the burden of proving that the CSE’s recommendations for two sessions per week of small group [Redacted] therapy for the 2010-2011, 2011-2012, 2012-2013, and 2013-2014 school years were appropriate. During the 2008-2009 and 2009-2010 school years, the Student received [Redacted] therapy four times per week (three small group sessions and one 1:1 session). In March of 2010,the Student had a standard score of [Redacted] and percentile rank of [Redacted] on the Peabody Picture Word Vocabulary Test 4 (“PPVT-4”), and a standard score of [Redacted] and percentile rank of [Redacted] on the Expressive One Word Picture Vocabulary Test (“EOPVT-2000”) (P. Ex. 28). Her [Redacted] therapy was reduced from four sessions per week to two sessions per week for the 2010-2011 school year and remained at that level during the 2011-2012 school year.

In February of 2011, her PPVT-4 standard score had decreased to [Redacted] , and her standard score on the EOWPVT-4 had decreased to (P. Ex. 37). In April of 2012, the Student’s scores on the PPVT-4 and EOPVT had dropped again. Her PPVT-4 standard score was [Redacted] , and her percentile rank was [Redacted] . Her standard score on the EOPVTR (Expressive One Word Picture Vocabulary Test Revised) was [Redacted] ,and her percentile rank was [Redacted] .The PPVT-4 assesses receptive vocabulary, and the EOPVTR assesses expressive vocabulary (see D. 22 at 1).

The Clinical Evaluation of Language Fundamentals-4 (“CELF-4”) was also administered in April of 2012. The Student’s scaled scores on the CELF-4 sub-tests were [Redacted] [Redacted] (a scaled score of [Redacted] on seven sub-tests, a scaled score of [Redacted] on three sub-tests, and one sub-test each with scaled scores of [Redacted] , [Redacted] , and [Redacted] ; with percentile ranks of less than [Redacted] for most sub-tests) (D. Ex. 22). The Student’s percentile rank on the core and index scores were as follows: Core [Redacted] Score, less than [Redacted] ; Receptive Language Score, less than [Redacted] ; Expressive Language Index, less than [Redacted] ; Language Content Index, [Redacted] ; Language Structure, less than [Redacted] and Working Memory, [Redacted] (D. Ex. 22 at 2). She is described as being “ [Redacted] [Redacted] [Redacted]” on all sub-tests and indexes. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

Although the Student’s standard scores on the February 2013 administration of the PPVT-4 and the EOPVTR increased by several points, she has not yet returned to the standard scores that she had attained when she was receiving four sessions per week of direct [Redacted] therapy. Two sessions per week of direct [Redacted] even with one or two sessions per week of a [Redacted] consult, does not appear to be affording the Student the opportunity to make meaningful progress. Her IEPs reflect that she requires preteaching and reteaching daily/throughout the school day, in all school settings. The Student’s learning is also impacted by her [Redacted] delays, [Redacted] , and [Redacted] deficits. These factors also mitigate against the CSE recommendation for two sessions per week of [Redacted] services. The Student is capable of learning, and there is no evidence that her [Redacted] skills have plateaued. The CSE’s recommendations for [Redacted] services have allowed the Student to make trivial progress. She is entitled to make meaningful progress. In order for that to occur, she needs to receive at least four sessions per week of [Redacted] therapy. Based on her prior history, one of those sessions should be 1:1.

The CSE recommended only one session per week of group [Redacted] therapy for the Student’s extended school year (summer) programs. In light of the Student’s severe [Redacted] delays, this was not an appropriate level of service. Moreover, the CSE had no reasonable basis for reducing services by fifty percent during the summer. The reason cited was that it was a District policy. As such, it was applied to all students regardless of their demonstrated needs, progress, IEP goals, etc. There was thus no basis for determining that it was an appropriate level of service for the Student. The CSE inappropriately predetermined the level of the Student’s summer [Redacted] services and excluded the Parents from the decision-making process regarding that aspect of the Student’s program. This constituted both a procedural and substantive FAPE deprivation.

Although the District started implementing the [Redacted] [Redacted] model ([Redacted] weeks of direct services followed by [Redacted] of indirect services) for “all students,” the Parents objected to changing the Student’s service delivery model to [Redacted] . As a result of the Parents’ objection, the CSE did not in fact implement the [Redacted] model with the Student. Although the CSE had recommended the [Redacted] model for the 2012-2013 school year as of the April 27, 2012 Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District CSE meeting (D. Ex. 25), by the time that school started in September the IEP had been changed to eight sessions per month (D. 28). Even though eight times per month is a little less than two per week, it was clear from the testimony at the hearing that the Student in fact received [Redacted] services twice per week during the 2012-2013 school year. On November 29, 2012, the Student’s IEP was changed to reflect that she was actually receiving two sessions per week of small group [Redacted] therapy (D. Ex. 30).

Even though the CSE did not reduce the Student’s [Redacted] services to [Redacted] weeks of direct service/[Redacted] of indirect service delivery model, the two sessions per week of group services in her 2010-2011, 2011-2012, 201-2013, and 2013-2014 IEPs were not sufficient. Her [Redacted] skills (according to her scores on the Peabody Picture Vocabulary Test and the Expressive One Word Picture Vocabulary Test) regressed when her services were reduced from three small group and one individual session per week to two small group sessions per week. The Student’s scores on her [Redacted] assessments continues to be [Redacted] (see discussion supra), and she needs to go back to the level of services that she was receiving when she was making progress (three individual and one group session per week). Moreover, in light of the regression that she experiences when services are reduced, she needs to continue the higher level of services on a twelve month school year basis.

Based on the foregoing, I find that the District did not provide the Student with an appropriate level of [Redacted] therapy during the 2010-2011, 2011-2012 and 2012-2013 school years, and it did not offer to provide her with an appropriate level of [Redacted] services for the 2013-2014 school years. [Redacted] Services/[Redacted] Program The Parents maintain that the Student has not made any [Redacted] progress during the past several years in the District, and that she has remained at a grade [Redacted] level for the past three school years. They assert that the Student requires multi-sensory [Redacted] instruction, and that the [Redacted] [Redacted] Program is an effective and appropriate reading program for her. They challenge the District’s decision to discontinue the [Redacted] [Redacted] Program and replace Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District it with [Redacted]. The District maintains that the [Redacted] [Redacted] Program was not appropriate because it is intended for students who are functioning at a higher cognitive level than the Student, and because it only addresses [Redacted] .

During the 2009-2010 school year and the first half of the 2010-2011 school year, the CSE denied the Parents’ request for [Redacted] [Redacted] instruction. The CSE added “[Redacted] [Redacted] ” to the Student’s IEP on January 18, 2011 (D. Ex. 10 at 1). A special [Redacted] class for reading was added to the Student’s IEP for 40-minute sessions every other day (D. Ex. 10 at 2). The special [Redacted] [Redacted] class was continued during the 2011-2012 school year for five 40- minute sessions every two weeks (D. Ex. 14). The Student’s [Redacted] instruction was changed to five 40-minute sessions per week of special class [Redacted] instruction in a [Redacted] group for the 2012-2013 school year (D. Ex. 25). The class size was changed to [Redacted] on November 29, 2012 (D. Ex. 30). The Student’s 2013-2014 IEP included a daily 40-minute special class ([Redacted] ) for reading (D. Ex. 39).

The Parents’ initial request for [Redacted] [Redacted] instruction was for 40-minute sessions every two days (D. Ex. 8). Prior to that request, the Parents had made arrangements for the Student to receive [Redacted] [Redacted] instruction from a private tutor (see P. Ex. 25). Although the Parents’ request was not granted when initially made (April 29, 2010), when the CSE ultimately added it to the Student’s IEP on January 18, 2011, it was added at the frequency and duration requested by the Parents. As of that point in time, the District staff on the CSE and the Parents agreed that a special [Redacted] class every other day was an appropriate level of service. The parties had access to a variety of evaluations and reports at that time. As such, as of that point in time I find that the CSE’s recommendations for the Student’s special [Redacted] instruction were reasonably calculated to enable her to make meaningful educational progress. I will not use subsequent data about minimal progress to negate that decision as of the time that it was made. As such, I find that the CSE’s recommendations regarding the Student’s [Redacted] instruction for the January through June portion of the 2010-2011 school year were appropriate. The Student made progress with the [Redacted] instruction during that time. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District The CSE agreed to continue [Redacted] [Redacted] instruction for the 2011-2012 school year (D. Ex. 14 at 13). Student was placed in a [Redacted] special class for [Redacted] ,taught by Ms. [Redacted] , for the 2011-2012 school year (D. Ex. 14; Tr. 140). The CSE discussed the [Redacted] and [Redacted] [Redacted] programs at the February 16, 2012 CSE meeting (Tr. 103-04), and recommended that the Student be evaluated for the [Redacted] program (D. Ex. 19 at 12. On April 27, 2012, the CSE recommended that the Student receive [Redacted] instruction for [Redacted] for five 40-minute sessions per week (D. Ex. 25 at 18). Although the CSE’s initial recommendations for the Student’s special class for reading were reasonably calculated to enable the Student to make meaningful educational progress as of the time that the recommendations were made, the CSE’s decision to change the Student from [Redacted] to [Redacted] was not.

The District maintains that the Student requires a [Redacted] program that addresses [Redacted] in addition to [Redacted] ,and that the CSE appropriately decided to terminate the Student’s [Redacted] instruction and use [Redacted] instead. In determining that the [Redacted] program was inappropriate for the Student due to her cognitive functioning level, the CSE disregarded the fact that the Student had been making progress with the [Redacted] program. I am not persuaded by the District’s argument that it switched the Student’s reading instruction program from [Redacted] to [Redacted] because the Student needed a program that addressed [Redacted] in addition to [Redacted] . Clearly the Student needs to have instruction to address both [Redacted] and [Redacted] . However, when the District assessed the Student for [Redacted], it determined that she was not ready for that program and needed to start with [Redacted] (a precursor to the [Redacted] program).4

[Redacted] primarily addresses [Redacted] .The CSE Meeting Minutes for the April 27, 2012 CSE meeting clearly provide that the Student would be provided with special class [Redacted] instruction for [Redacted] (not for [Redacted] ) (D. Ex. 25 at 18). The District’s contention that the

The Student’s [Redacted] evaluation was not included as an exhibit in the hearing record. The District’s Academic Administrator for Special Education testified that she did not know who performed the evaluation or who would have a copy of it (Tr. 602). Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

Student was switched from [Redacted] to [Redacted] in order to address [Redacted] [Redacted] issues that could not be addressed is therefore not supported by the hearing record. The testimony about [Redacted] described it as an instructional program for [Redacted] (Tr. 603). Based on the information presented at the hearing, I find that the CSE’s decision to change the Student’s special [Redacted] instruction from [Redacted] to [Redacted] was not reasonably calculated to enable the Student to make meaningful education progress. The Student had been making progress with the [Redacted] program. The Student was evaluated for [Redacted] (which is a [Redacted] [Redacted] program), but was found to be lacking the foundation skills necessary for the program (Tr. 515-16; 564 ). She was described to be “ill-prepared to participate successfully in [Redacted] (Tr. 516). Since [Redacted] addresses [Redacted] , the Student was not switched to [Redacted] to address [Redacted] [Redacted] deficits.

The Student did not make meaningful progress with the daily 10:1 [Redacted] special [Redacted] class during the 2012-2013 school year. The hearing record includes two [Redacted] progress reports. In the first, the Student’s [Redacted] score was [Redacted] on both 9/25/12 and on 11/9/12 (P. Ex. 72 at 6). The Student’s11/9/12 [Redacted] score of [Redacted] was not reported in the end of the year progress report, which listed an 11/28/12 [Redacted] score of [Redacted] instead (P. Ex. 79 at 3). The Student’s end of the year [Redacted] progress report reflected minimal progress over the course of the 2012-2013 school year. Her [Redacted] [Redacted] (“[Redacted] [Redacted] Inventory”) (P. Ex. 79 at 5) reflected the following scores:

Test Initial 2012-2013 Score Final 2012-2013 Score Letter Names - Accuracy subtest [Redacted] [Redacted] Sight Words - Accuracy subtest [Redacted] [Redacted] Sight Words - Fluency subtest [Redacted] [Redacted] Nonsense Words - Accuracy subtest [Redacted] [Redacted] Nonsense Words - Fluency subtest [Redacted] [Redacted] SPI Fluency Score [Redacted] [Redacted] Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

SPI Decoding Status [Redacted] [Redacted]

The Student showed no real progress in decoding with her daily 10:1 [Redacted] [Redacted] instruction over the course of the 2012-2013 school year. The scores listed above actually reflect regression in [Redacted] [Redacted] .Despite the Student’s apparent regression in [Redacted] and [Redacted] ,her [Redacted] score went from a [Redacted] at the beginning of the year to a [Redacted] at the end of the year, which reflects progress from “[Redacted] ” to [Redacted] grade. The three [Redacted] that she successfully [Redacted] in the [Redacted] program were at [Redacted] [Redacted] and [Redacted] ([Redacted] level [Redacted] ). While that may appear to be progress, the Student had been reported to be at a [Redacted] grade [Redacted] level for years.

The CSE’s decision to change the Student from [Redacted] to [Redacted] for the 2012-2013 school year was not, however, reasonably calculated to enable the Student to make meaningful progress (see discussion supra). Moreover, by the time that the CSE met to make recommendations for the 2012-2013 school year, it should have been apparent that the Student was making extremely slow progress. The Student’s IEPs made clear that she needed a substantial amount of [Redacted] , [Redacted] and [Redacted] .The daily [Redacted] special [Redacted] class for the 2012-2013 school year did not provide the level of individualized instruction and repetition/review/reteaching that the Student required to make meaningful educational progress. Nor did it provide her with the small group instruction that she needed in order to make meaningful progress in [Redacted] . Her [Redacted] delays, [Redacted] issues, and [Redacted] [Redacted] [Redacted] warranted a much smaller instructional group for [Redacted] instruction. The [Redacted] class size mandated by the Student’s initial 2012-2013 IEP was too large a setting for the Student’s [Redacted] instruction. Even though the class actually had only [Redacted] students and the Student’s IEP was changed to reflect the [Redacted] class size on November 29, 2012 (D. Ex. 30), the class was too large a setting to meet the Student’s need for intensive and individualized specialized [Redacted] instruction. It is therefore not surprising that the Student did not make progress in the 2012-2013 [Redacted] special [Redacted] class. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

Based on the Student’s [Redacted] [Redacted] delay and limited progress (as well as the [Redacted] delays, [Redacted] issues, and [Redacted] [Redacted] [Redacted] noted supra), when the CSE convened a meeting to develop the Student’s 2013-2014 IEP, it would have been reasonable for the CSE to conclude that the Student needed to receive specialized [Redacted] instruction in a smaller setting. Instead of reducing the class size for the Student’s reading instruction, the CSE changed the Student’s special class for reading to [Redacted] (E. Ex. 39). This reflected an increase in the class size (from [Redacted] students to [Redacted] students). For the same reasons that I found that the prior recommendations for classes with [Redacted] or [Redacted] students was too large for the Student’s special [Redacted] class , I find that the [Redacted] special class was too large for the 2013-2014 school year.

I note that there is a substantial dispute in this case about the extent to which the Student made progress in [Redacted] over the past several years. The Parents maintain that the Student has remained at a [Redacted] grade reading level for several years, while the District maintains that the Student has made several years of progress and is now reading at a [Redacted] or [Redacted] grade level. It is important to note that there is a distinction between [Redacted] and [Redacted] [Redacted] . There is no objective evidence to support the contention that the Student’s [Redacted] and [Redacted] [Redacted] are on a [Redacted] or [Redacted] grade level. In fact, the District’s [Redacted] progress data (P. Ex. 79) reveals that the Student’s reading skills are nowhere near the v [Redacted] or [Redacted] grade level.

While testing over the course of the last few years reveals that the Student’s [Redacted] skills have improved (at least up until she was placed in the [Redacted] class), there has not been significant improvement in her [Redacted] [Redacted] skills. The ultimate goal of [Redacted] is to [Redacted] what is being [Redacted] , as opposed to simply being able to [Redacted] [Redacted] [Redacted] . Depending on the assessment and the interpretation thereof, the Student has made either no progress in [Redacted] [Redacted] or about a [Redacted] -year gain in [Redacted] [Redacted] skills over the course of the last four or five school years. A [Redacted] year gain over four or five years is not meaningful progress. As such, the CSE’s determination to continue to provide [Redacted] instruction Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District in a group of [Redacted] students for the 2013-2014 school year was not reasonably calculated to enable the Student to make meaningful educational progress. During the prior three school years, the Student made minimal progress when receiving reading instruction in classes with [Redacted] or more students. The CSE’s recommendation to increase the reading class size to [Redacted] was not appropriate, and was not reasonably calculated to allow the Student to make meaningful educational progress in reading.

Compensatory Education Claims: 2010-2011, 2011-2012, and 2012-2013 School Years

Based on the foregoing, I find that the District did not provide the Student with a FAPE for the second half of the 2010-2011 school year and for the 2011-2012 and 2012-2013 school years.5 The Student’s special education program did not adequately address several aspects of the Student’s needs: [Redacted] therapy, [Redacted] therapy, [Redacted] services, [Redacted], need for appropriate [Redacted] grouping, and [Redacted] instruction.

The Parents request compensatory education. Compensatory education and services are equitable remedies. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where “there has been a gross violation of the [IDEA] resulting in the denial of, or exclusion from, educational services for a substantial period of time. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071(2d Cir. 1988)].

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y. Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before

The first half of the 2010-2011 school year is not at issue herein as it is outside the two-year statute of limitations. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District the student becomes ineligible for instruction by reason of age or graduation. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No. 08- 054).

The Parents maintain that three year placement in [Redacted]’s three-year post-secondary [Redacted] Program is the appropriate remedy for the District’s three-year failure to to provide the Student with adequate educational and related services (IHO Ex. XVII at 48). Although I agree that the District did not provide the Student with a FAPE during the second half of the 2010-2011 school year and during the 2011-2012 and 2012-2013 school years, it did not constitute a gross violation of the IDEA or a denial of/exclusion from educational services. With the exception of [Redacted] therapy, the Student experienced an insufficient level of services, as opposed to prolonged deprivation of services. With respect to [Redacted] therapy, the Student experienced a prolonged deprivation of services. However, the requested compensatory education (three years at the [Redacted] [Redacted] Program)6 would not compensate the Student for the District’s failure to include direct [Redacted] therapy services in the Student’s IEP for the school years at issue herein. The remaining FAPE deprivations for those school years do not rise to the level of the type of gross deprivation of FAPE that would warrant a compensatory education award. The Parents’ request for three years of placement at the [Redacted] Program as compensatory education is denied.

FAPE for the 2013-2014 School Year: Reimbursement Claim

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct.

The [Redacted] Program at [Redacted] is a post-secondary program to help students transition toward independent living. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

15, 2007].

Per the discussion supra, I find that the CSE did not offer the Student an appropriate program and placement for the 2013-2014 school year. The Student had been making only minimal progress in her prior [Redacted] programs, yet the CSE’s recommendation for decreased staff support ([Redacted] ). The evidence does not support a finding that a [Redacted] program would appropriately meet the Student’s special education needs or that the recommendation was reasonably calculated to enable the Student to make meaningful educational progress. The 2013-2014 IEP did not include direct [Redacted] therapy services, which is a necessary component of the Student’s special education program. The IEP did not include sufficient [Redacted] services and did not include [Redacted] services to address the Student’s [Redacted] deficits. The IEP also did not include the small group [Redacted] instruction that the Student required. The [Redacted] special [Redacted] class is too large to allow the Student to make meaningful progress in [Redacted] (see discussion supra). The 2013-2014 IEP also does not include [Redacted] services and goals to provide the Student with training and assistance in the use of [Redacted] [Redacted].

The summer component of the 2013-2014 IEP is even more deficient than the September through June program. The CSE reduced the Student’s [Redacted] therapy by [Redacted] % based on a formula that the District uses for summer related services for all students. In so doing, it failed to consider the Student’s actual needs. By predetermining the level of the Student’s summer [Redacted] services, the District completely excluded the Parents from participating in the decision-making regarding the Student’s summer [Redacted] services. Moreover, since the Student’s educational program should include four sessions per week of [Redacted] services, the [Redacted] weekly [Redacted] recommended by the CSE was seriously inadequate. The summer 2013 program also did not include the Student’s special [Redacted] class. Even with the special [Redacted] class that she had during the 2012-2013 school year, the Student was making negligible progress and, according to the Student’s [Redacted] progress report (P. Ex. 79) had actually regressed in some areas, a summer program without any specialized [Redacted] instruction was likely to result in regression.

As such, I find that the District did not offer the Student a FAPE for the 2013-2014 school Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District year. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the unilateral placement at [Redacted] was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

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

489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).

In Frank G., the court summarized the appropriate Prong Two standard as follows:

[P]arents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. An appropriate private placement need not meet state education standards or requirements. For example, a private placement Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District need not provide certified special education teachers or an IEP for the disabled student. In addition, parents “may not be subject to the same mainstreaming requirements as a school board.” (. . . “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”). Frank G. at 364. (citations omitted).

Having considered the testimony presented and the documentary evidence submitted at the hearing, I find that [Redacted] is an appropriate program for the Student. [Redacted] is a residential/day school, located in [Redacted] [Redacted] , [Redacted] , for students with [Redacted] disabilities. It services students who have complex [Redacted] , [Redacted] , and [Redacted] and disabilities (P. Ex. 83; Tr. 1107-1109). [Redacted] is on the New York State Education Department list of approved schools (Tr. 1109). As part of the admissions process, students are carefully screened to ensure that the school can meet students’ individual needs and to determine whether the students will be a good “[Redacted]” fit with the other students in the program and to determine whether the school can meet students’ individual academic needs (Tr. 1063-1064). The school addresses academics, along with [Redacted], [Redacted] ,and independent living skills (P. Ex. 84).

The [Redacted] placement is appropriate for the Student in terms of her academic, [Redacted]/emotional, and management needs. The maximum class size at [Redacted] is [Redacted] (Tr. 1091), which fits in with the Student’s needs for instruction in a small class setting. Student’s program at [Redacted] includes small class instruction in [Redacted] for one hour each day (Tr. 1067). In addition, the Student will receive “[Redacted] tutorials,” in which she would receive more intensive [Redacted] instruction (Tr. 1067; 1091-92). She would be grouped for [Redacted] instruction with students having similar needs, and would be placed in a class with three to five students (with the flexibility to have 1:1 instruction if needed) (Tr. 1090-1092). [Redacted] therapy, [Redacted] therapy, and [Redacted] are available at [Redacted], although [Redacted] therapy is not available during the summer (1067-170). The school also provides students with assistive technology (computers, software, etc.) and has assistive technology specialists who work with students to teach them how to use the technology (Tr. 1077). The [Redacted] program also includes working on student’s [Redacted] skills (Tr. 1077) . [Redacted] are addressed during the school day, during after Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District school activities, and in the dorms (Tr. 1071-72). The program also addresses independent living skills (Tr. 1071).

Students are regularly assigned homework during the September through June portion of the school year. The students have reading and math homework each night, with homework in other subjects from time to time. There is a structured homework hour in the dorms each night, in which students are supervised doing homework with the ultimate goal of helping students learn to do their homework independently (Tr. 1079).

Although the [Redacted] residential program is more restrictive than the Student’s prior placements, it is not too restrictive a setting for her.

The testimony and documentary evidence presented by the Parents (Tr. 1104-1157; P. Exs. 83 and 84) was sufficient to meet the Parents burden of proving that the [Redacted] program has provided, and can continue to provide the Student with educational instruction that is specially designed to meet the Student’s unique needs, supported by such services as are necessary to permit the her to benefit from instruction. The program is reasonably calculated to enable the Student to receive educational benefits, and is likely to produce progress, not regression.7

I therefore find the Parents established that the [Redacted] Program is designed to provide the Student with educational instruction that was specifically designed to Student’s unique needs. As such, the Parents have met the second of the three Burlington/Carter criteria for tuition reimbursement.

I note that the Parents presented the testimony of [Redacted], a consultant who was previously employed by the New York State Education Department Office of Special Education (“NYSED”); his primary responsibility during that employment was monitoring in-state and out-of-state private school placements (Tr. 1253-54). Although Mr. [Redacted] was very knowledgeable about the [Redacted] program, I give his testimony little weight with respect to his opinion as to the manner in which the program would meet the Student’s special education needs. Mr [Redacted]’s information about the Student was based on conversations with the Parents and his review of two of the Student’s IEPs (Tr. 1267-68, 1273-75; 1276-77). He did not review any of the Student’s evaluations or progress reports (Tr. 1275-76) and did not remember the dates of the IEPs or all details of the program described on the IEPs (Tr. 1273-1275). Although Mr. [Redacted] was very knowledgeable about the NYSED approval process for NPS schools and about the [Redacted] program, he did not have sufficient information about the Student to support his opinion regarding whether or not [Redacted] would be an appropriate placement for her. Moreover, his opinion was based primarily on what the Parents told him, as opposed to an objective and comprehensive review of the Student’s evaluations and progress reports. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

I turn now to the third prong of the Burlington/Carter analysis, which is whether or not equitable factors support the Parents’ tuition reimbursement claim. The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. Tuition reimbursement may be denied when a parent has (by action or inaction) interfered with the CSE evaluation, program development and placement process.

The Parents in this proceeding fully cooperated with the CSE over the course of the last several years. They attended CSE meetings and regularly corresponded with school and district staff regarding the Student’s needs and educational program. They consented to evaluations and shared the results of private evaluations that they obtained. There is no evidence to suggest that the Parents interfered with or hindered the CSE in any way.

The District maintains that equitable factors preclude tuition reimbursement because the Parents failed to provide the District with the 10-day notice required by the IDEA (IHO Ex. XVIII at 30). It notes that the first notice that the District had of the intended unilateral placement was in the amended due process complaint.

Tuition reimbursement “may be reduced or denied” if the parents did not give the District notice, either at the most recent IEP meeting or, in writing, at least ten (10) business days before removing a child from a public school, that the parents “were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense” (34 C.F.R. 300.148(d)(1) and (2)). The District’s asserts that the Parents’ failure to give appropriate notice constitutes an absolute bar to tuition reimbursement (IHO Ex. XVII at 30). However, the federal regulation provides that reimbursement “may be reduced or denied “ (emphasis added), not that it must be denied.

Moreover, the December 21, 2012 due process complaint includes the Parents’ request that the District place the Student at [Redacted] (D. Ex. 1 at 17). In the Parents’ May 9, 2013 amended due process complaint, the Parents unequivocally stated their intention to unilaterally place the Student at [Redacted] and seek reimbursement from the District for the cost of that placement (P. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District Ex. 1A at 13 and 19).The District therefore had six or seven weeks notice of the Parents’ rejection of the District’s proposed placement and their intent to remove the Student from the District’s program, to unilaterally place the Student at [Redacted] for the Summer of 2013, and to seek reimbursement for the cost of that placement.8 The fact that the notice was contained in the amended due process complaint does not negate the fact that the Parents provided the District with substantially more then ten business days notice of their intent to remove the Student from a District public school. There is no requirement that the notice be provided prior to filing a due process complaint. It is sufficient if the notice is given at least ten days prior to the removal and unilateral placement.

There is nothing in the Record that would warrant denial of the Parents’ tuition reimbursement claim on equitable grounds. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. As such, the Parents are entitled to reimbursement for the cost of the Student’s summer 2013 [Redacted] placement. However, they are not entitled to reimbursement for the entire cost of that placement, because they did not in fact pay for the entire cost. The total cost of the [Redacted] Summer 2013 tuition was $ (Tr. 1051, P. Ex. 85). The Parents held a fundraiser to obtain the funds necessary for the Student to attend [Redacted] during the Summer of 2013 (Tr. 1025-6, 1051). The fundraiser resulted in $ being raised for the summer tuition.9 A portion of these funds was contributed by the Parents’ church. The balance of the cost, in the amount of $ , was paid by the Parents (P. Ex. 85 at 1). The Parents are entitled to reimbursement for the $ that they paid for the Student’s Summer 2013 enrollment at [Redacted]. They are not, however, entitled to reimbursement for the tuition paid with funds obtained from their church and through the fundraiser.

FAPE for the 2013-2014 School Year: Request for [Redacted] Placement The Parents also seek an order directing that the District immediately place the Student in the

As IHO, I must make my decision on substantive, rather than procedural grounds. Even if including the notice of intended removal/unilateral placement in the amended due process complaint was not the “optimal” procedure to follow, as a matter of substance, the District had more than ten days notice of the unilateral placement. The Parent testified that they raised the sum of about $ (Tr. 1025-26, 1051). The payment reflected a payment in the amount of$ (P. Ex. 85 at 2). Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District [Redacted] residential program for the 2013-2014 school year. Based on the findings set forth supra, the District did not offer the Student an appropriate program for the 2013-2014 school year. In addition, per the findings supra, the [Redacted] residential program is an appropriate program for the Student. Moreover, the [Redacted] program is not overly restrictive. The student was placed in less restrictive settings in the District, and she did not make meaningful progress. In some areas, she appears to have regressed. The District tried some level of mainstreaming for the Student, but it was not successful. Education in a regular classroom with the use of supplemental aids and services cannot be achieved satisfactorily for the Student. The District has mainstreamed the Student to the maximum extent possible, and has placed her in [Redacted] classes in the District, and she has not made meaningful progress. In addition, the [Redacted] groupings in the Student’s District programs have not been appropriate and the Student has become increasingly isolated. At this point, residential placement in a school that can meet the Student’s social, physical, academic, and managements needs is appropriate. [Redacted] can meet those needs, and the Student must be placed at [Redacted] as soon as possible.

As of the time that the final hearing in this case was held on July 30, 2013, the Student was unilaterally placed at [Redacted] for the summer of 2013 and the Parents were seeking reimbursement for the summer placement, as well as an order directing that the District place the Student at [Redacted] as of September, 2013. Since the Parents requested placement as of the beginning of September, the order directing placement at [Redacted] will be nunc pro tunc to September 1, 2013. In the event that the Student began attending the school, for the September 2103 through June 2014 school year, prior to the issuance of this decision and order, the District shall fund the placement as a state approved nonpublic school (“NPS”) placement as of the date that the Student began to attend the school.

ORDER

IT IS HEREBY

ORDERED that the District is directed to immediately place the Student in the Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District residential program at the [Redacted] School in [Redacted] , [Redacted] and to fund that placement for the 2013-2014 school year; and it is further

ORDERED that if the Student began attending the [Redacted] residential program prior to the date hereof, the District shall fund that placement as of the first day of attendance after September 1, 2013; and it is

ORDERED the District is directed to fund a comprehensive independent [Redacted] therapy evaluation in order to provide the basis for developing appropriate long term goals and short term objectives to address all of the Student’s [Redacted] therapy needs; and it is further

ORDERED that the District’s Committee on Special Education is directed to convene a meeting to prepare an Individualized Education Program for the Student which includes the following related services (along with appropriate long term goals and short term objectives for such services) to be provided directly to the Student on a twelve month school year basis: three sessions per week of small group [Redacted] therapy, one session per week of 1:1 [Redacted] therapy, two sessions per week of 1:1 [Redacted] therapy, and one session per week of 1:1 [Redacted] services, and individual and group [Redacted] services to address [Redacted]; and it is further

ORDERED that the Parents’ request for tuition reimbursement for the cost of the Student’s Summer 2013 placement at the [Redacted] School is granted to the extent that the District is directed to reimburse the Parents for the $ that they paid toward the cost of that placement; and it is further

ORDERED that the Parents’ request for compensatory education is denied.

Dated: December 13, 2013 /s/ Mindy G. Wolman

MINDY G. WOLMAN

Impartial Hearing Officer Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

PERSONS WHO APPEARED AT MARCH 14, 2013 PRE-HEARING CONFERENCE

For District:

[Redacted], Esq. Attorney (By Telephone)

For Parents:

[Redacted], Esq. Attorney (By Telephone)

PERSONS WHO APPEARED AT JUNE 10, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Director of Special Education

[Redacted]* Special Education Teacher

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted] Mother

PERSONS WHO APPEARED AT JUNE 11, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Director of Special Education

[Redacted]* Special Education Teacher

[Redacted]* Speech Therapist

[Redacted]* [Redacted] Therapist

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted] Mother

* Testified at Hearing Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

PERSONS WHO APPEARED AT JUNE 12, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Director of Special Education

[Redacted]* Academic Administrator for Special Education

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted] Mother

PERSONS WHO APPEARED AT JUNE 13, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted]* Director of Special Education

[Redacted]* Academic Administrator for Special Education

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted] Mother

PERSONS WHO APPEARED AT JULY 8, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Director of Special Education

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted]* Mother

[Redacted]* Director of Admissions (By Telephone)

[Redacted]* Director of Special Services (By Telephone)

* Testified at Hearing Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

PERSONS WHO APPEARED AT JULY 9, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Director of Special Education

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted] Mother

[Redacted]* Teacher (By Telephone)

[Redacted]* Consultant (By Telephone)

PERSONS WHO APPEARED AT JULY 30, 2013 HEARING

For District:

[Redacted], Esq. Attorney

[Redacted] Director of Special Education

[Redacted], Psy.D.* Psychologist

For Parents:

[Redacted], Esq. Attorney

[Redacted] Father

[Redacted] Mother * Testified at Hearing Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

DOCUMENTARY EVIDENCE

SCHOOL DISTRICT EXHIBITS

1. Demand for Due Process Hearing, 12/21/12, 9 pp. 2. Response to Due Process, 1/7/13, 2 pp. 3. Re-evaluation (includes evaluation). 1/14/09, 9 pp. 4. 2009-2010 IEP, 2/25/09, with meeting minutes and related notices, 23 pp. 5. Re-evaluation, 10/21/09, 11 pp. 6. 2009-2010 IEP, 11/13/09, with IEP Amendment Forms and related notices, 19 pp. 7. 20102911 IEP, 4/1/10, with meeting minutes and related notices, 18 pp. 8. Letter to [Redacted] from [Redacted], 4/29/10, with attached 4/6/10 letter from [Redacted]

and test results, 9 pp. 9. 2010-2011 IEP, 9/28/10, with related IEP amendment form and notices, 14 pp. 10. 2010-2011 IEP, 1/18/11, with related IEP amendment form and notices, 15 pp. 11. Scores, 2/11, 1 p. 12. [Redacted] Reading Report, 4/11, 1 p. 13. Letter to [Redacted] from [Redacted] ,4/12/11, with 2/10/11 email to [Redacted], 2 pp. 14. 2011-2012 IEP, 4/2911, and Student Information Summary, with minutes and related notices, 18 pp. 15. Letter to [Redacted] , [Redacted], [Redacted] from Parents, 7/13/11, 1 p. 16. Letter to Parents from [Redacted], 8/18/11, 1 p. 17. Letter to [Redacted] from Parents, 9/12/11, with attached 8/16/11 vision analysis, 4 pp. 18. 2011-2012 IEP, 10/12/11, with related meeting minutes, parent correspondence and notices, 20 pp. 19. 2011-2012 IE, 2/16/2, and Student Information Summary, with minutes and related notices, 21 pp. 20. [Redacted] Therapy Evaluation, 4/18/12, 3 pp. 21. Student Consultation, 4/19/12, 4 pp. 22. Evaluation, 4/25/12, 4 pp. 23. Reevaluation Summary, 4/27/12, 4 pp. 24. Reevaluation Summary Addendum, undated, 3 pp. 25. 2012-2013 IEP, 4/27/12, and Student Information Summary, and related notices, 23 pp. 26. IEP Amendment, 5/4/12, and related notices, 14 pp. 27. Letter to [Redacted] from [Redacted] , 5//11/12, 1 p. 28. 2012-2013 IEP, 6/6/12, and Student Information Summary, CSE minutes, and related notices, 24 pp. 29. Reevaluation, 8/9/12, 27 pp. 30. 2012-2013 IEP, 11/29/12, and Student Information Summary, with CSE minutes and related notices, 29 pp. 31. [Redacted] Therapy Evaluation, 12/3/12, 7 pp. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

32. 2012-203 IEP, 1/8/13, and Student Information Summary, meeting minutes and related notices, 31 pp. 33. Process Tracking Log, 3/30/6 - 4/26/12, 11 p. 34. E-mails, 4/12/11 - 1/9/13, 57 pp. 35. Progress Report, 6/30/11, 12 pp. 36. Progress Report, 6/30/12, 6 pp. 37. Progress Report, 5/20/13, 23 pp. 38. Report, 5/12/13, 2 pp. 39. 2013-2014 IEP, 5/14/13, and Student Information Summary, meeting minutes and related notices, 30 pp. 40. Reading A-Z Correlation Chart, 6/12, 1 p. 41. School Functional Assessment, raw scores, undated, 11 pp. 42. Response to Amended Due Process Complaint, 6/7/13, 2 pp.

43. MARKED FOR IDENTIFICATION ONLY

44. MARKED FOR IDENTIFICATION ONLY

45. Evaluation 4/13 and 5/ 13, 5 pp.

PARENT EXHIBITS

1. Marked for Identification Only - Exhibit pulled Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

19. Draft Data form IEP 2008-2009, 9/22/08, 16 pp. 20. IEP and D.P. Notices regarding IEP revised without convening a CSE meeting (2008-2009), 9/22/08, 14 pp. 21. 2008-2009 IEP, Attendance Sheet and handwritten notes, 10/6/08, 14 pp. 22. Marked for Identification Only - Exhibit pulled 23. Marked for Identification Only - Exhibit pulled 24. Marked for Identification Only - Exhibit pulled 25. [Redacted] letter to [Redacted] regarding [Redacted] Reading System, 11/6/09, 7 pp. 26. Marked for Identification Only - Exhibit pulled 27. Marked for Identification Only - Exhibit pulled 28. Testing, 3/31/10, 2 pp. 29. Draft Data form 4/1/10, 12 pp. 30. Marked for Identification Only - Exhibit pulled 31. Marked for Identification Only - Exhibit pulled 32. Marked for Identification Only - Exhibit pulled 33. Marked for Identification Only - Exhibit pulled 34. Marked for Identification Only - Exhibit pulled 35. DRAFT IEP 2010-2011, Attendance sheet, handwritten notes, 1/18/11, 14 pp. 36. Marked for Identification Only - Exhibit pulled 37. Scores, 2/1/11, 1 p. 38. Marked for Identification Only - Exhibit pulled 39. Marked for Identification Only - Exhibit pulled 40. DRAFT 2011-2012 IEP - Annual Review, 4/29/11, 14 pp. 41. Marked for Identification Only - Exhibit pulled 42. Marked for Identification Only - Exhibit pulled 43. Email correspondence between [Redacted], [Redacted], [Redacted] , [Redacted], [Redacted]

,[Redacted], [Redacted], Dr. [Redacted] ; Letter of [Redacted] to [Redacted], 4/29/11, 19 pp. 44. Release Authorization Form, 6/5/11, 1 p. 45. Interim Report - Quarter 1, 6/8/11, 2 pp. 46. Committee on Special Education Consent for Reevaluation, 6//13/11, 1 p. 47. Email correspondence between [Redacted] and [Redacted] with achievement testing for Math, Writing, and Reading, 6/13/11, 4 pp. 48. Marked for Identification Only 49. Marked for Identification Only - Exhibit pulled 50. Marked for Identification Only - Exhibit pulled 51. WADE Student Information Form, 9/10/11, 9 pp. 52. Marked for Identification Only - Exhibit pulled 53. Marked for Identification Only - Exhibit pulled 54. Place in the News - school work, 10/4/11, 1 p. 55. Marked for Identification Only - Exhibit pulled Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

56. Marked for Identification Only - Exhibit pulled 57. [Redacted] Therapy Screening of [Redacted] , OTR/L - [Redacted] Group, 10/19/11, 2 pp. 58. Progress Report for IEP Goals 2011-2012, 11/21/11, 4 pp. 59. Marked for Identification Only - Exhibit pulled 60. Marked for Identification Only - Exhibit pulled 61. Marked for Identification Only - Exhibit pulled 62. Marked for Identification Only - Exhibit pulled 63. Marked for Identification Only - Exhibit pulled 64. Marked for Identification Only - Exhibit pulled 65. 2012-2013 DRAFT IEP, 4/27/12, 16 pp. 66. Marked for Identification Only - Exhibit pulled 67. Marked for Identification Only - Exhibit pulled 68. Marked for Identification Only - Exhibit pulled 69. Reevaluation Summary, undated, 3 pp. 70. Marked for Identification Only - Exhibit pulled 71. Marked for Identification Only - Exhibit pulled 72. [Redacted]/[Redacted], 11/19/12, 6 pp. 73. 2012-2013 DRAFT IEP, 11/29/12, 15 pp. 74. Marked for Identification Only - Exhibit pulled 75. [Redacted] Therapy Shoulder/Elbow Evaluation of [Redacted] from [Redacted], 1/8/13, 5 pp. 76. 2012-2013 DRAFT IEP, 1/8/13, 20 pp. 77. Marked for Identification Only 78. Progress Report - [Redacted], 3/13/13, 8 pp. 79. [Redacted] Scores, 4/24/13, 5 pp. 80. Progress Report for Goals and Objectives, 5/2/13, 16 pp. 81. Evaluation, [Redacted], unsigned, 5/12/13, 2 pp. 82. DRAFT IEP 2013-2014, 5/14/13, 19 pp. 83. [Redacted] School: History, Mission, At a Glance, Welcome, Introduction, undated, 19 pp. 84. [Redacted] School - [Redacted] letter to [Redacted], 5/24/13, 2 pp. 85. Payment Receipts, 3/26/13 and 5/22/13, 2 pp. 86. Handwriting sample, undated, 1 p. 87. Student’s Schedule, 2011-2012, 2 pp.

IHO EXHIBITS

I. Pre-Hearing Conference Summary, 4/14/13, 1 p. II. Memo from IHO re Compliance Date Extension, 3/14/13, 1 p. III. Memo from IHO re Compliance Date Extension, 4/23/13, 1 p. IV. Subpoena to Parents, 6/20/13, 2 pp. Impartial Hearing in the Matter of [Redacted], by [Redacted] and [Redacted], her parents, v. the [Redacted] Central School District

V. Motion to Quash, 7/1/13, 2 pp. VI. Email from [Redacted], 7/1/13, 1 p. VII. Subpoena to Parents, 7/2/13, 2 pp. VIII. Email from IHO, 7/3/13, 1 p. IX. Email from [Redacted], 7/3/13, 1 p. X. Letter from opposing motion to quash, 7/5/13, 2 pp. XI. Memo from IHO re Compliance Date Extension, 6/12/13, 1 p. XII. Memorandum to [Redacted], undated, 2 pp. XIII. Memo from IHO re Compliance Date Extension, 9/9/13, 1 p. XIV. Memo from IHO re Compliance Date Extension, 9/30/13, 1 p. XV. Memo from IHO re Compliance Date Extension, 10/16/13, 1 p. XVI. Memo from IHO re Compliance Date Extension, 11/14/13, 1 p. XVII. Memorandum of Law on Behalf of Parents, 10/28/13, 52 pp. (including cover page and table of contents) XVIII. Memorandum of Law (School District), 10/28/13, 42 pp. (including cover page and table of contents)

Footnotes

[1] A Amended Demand for Due Process, 5/29/13, 20 pp. 2. Marked for Identification Only - Exhibit pulled 3. Confidential Evaluation Report, 11/15/05, 12/22/05, 9 pp. 4. DRAFT 2007-2008 IEP, 3/27/07, 9 pp. 5. 2007-2008 IEP, Attendance Sheet and handwritten notes, 3/27/07, 11 pp. 6. 2007-2008 IEP, Attendance Sheet and handwritten notes, 6/13/07, 12 pp. 7. 2007-2008 IEP, Attendance Sheet and handwritten notes, 9/27/07, 12 pp. 8. Memo of [Redacted] to [Redacted] re: Summary of 10/03/07 meeting with Ms. Elliott, 10/17/07, 1 p. 9. Memo of [Redacted] to [Redacted] re: Summary of 12/07/07 consult for [Redacted], 12/17/07, 1 p. 10. Marked for Identification Only 11. CSE Draft Data Form, 1/22/08, 14 pp. 12. 2007-2008 IEP, Attendance sheet and handwritten notes, 1/22/08, 12 pp. 13. Marked for Identification Only 14. Summary of Adaptive Scores, 3/8/08, 1 p. 15. Marked for Identification Only - Exhibit pulled 16. 2007-2008 IEP, Attendance Sheet and handwritten notes, 3/14/08, 12 pp. 17. Marked for Identification Only - Exhibit pulled 18. Summer Progress Report, 8/8/08, 4 pp.