Impartial Hearing Decision

IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,

IMPARTIAL HEARING OFFICER

_________________________________ In the Matter of the Complaint of DECISION Of the Parent of a Student with a Disability Against the XXXXXXXXXXXX

CASE IDENTIFIER NO 79265

___________________________________

PROCEDURAL POSTURE

This Impartial Hearing Officer was appointed to preside over the HR1 following the recusal of the previously assigned Impartial Hearing Officer. Upon review of the appointment letter and reviewing the impartial hearing reporting system, it became apparent that the Due Process Hearing Request had been filed on September 4, 2013, and the resolution period had concluded. This Hearing Officer immediately contacted counsel and advocates and scheduled a Pre-Hearing Conference. During the course of the Pre- Hearing Conference the pendency issue was raised by advocate for the parents, which resulted in the scheduling of numerous hearing dates regarding pendency which resulted in one full day of testimony. The second hearing date was commenced but canceled without any testimony at the request of parties to allow for an opportunity to resolve amicably the pendency issue and enter into an agreement regarding pendency. The third day was canceled due to a snow day, the fourth day testimony was held, the parties rested regarding the pendency component of the Due Process Hearing Request. During the course of the pendency hearing the following district pendency exhibits, referred to as DP were admitted, 1,2,3,4,5,6,7,8,9 and 77, parent’s exhibits A,E,F,G,I,J,K,LL,DDD,KKK, and

LLL, were admitted and numerous Impartial Hearing Officer exhibits were labeled IHO1 Pre- Hearing Conference Summary, IHO2 SO Decision 12-028, IOH3 Parent Brief, IHO4 IEP dated May 17, 2012, IHO5 letter regarding admission of exhibits by the parents dated December 7, 2013, IHO6 letter from attorney for the district, dated December 9, 2013 regarding said exhibits.

Regarding consolidation of HR1 and HR2, this IHO ordered effective February 21, 2014 the Impartial Hearing Case No.: 82256 be consolidated with Impartial Hearing Case No.: 79265 and the consolidated case shall retain the timelines associated with Case No.: 79265.

Further procedural issues arose regarding the consolidation, the procedural issues were raised both on and off the record, and those issues pertained to the consolidation of Hearing Request 1 and 2, which was done previously by evidence by IHO Exhibit 16. The difficulty was that the Impartial Hearing Reporting System was having trouble tracking same. The reason being either the effective date of the new regulations or because of technical limitations of the IHRS. The suggestion was made, reportedly from SED, that the Order be effective as of the date of February 21, 2013 thereby being under the old rules and that would effectuate the consolidation. The 3rd Hearing Request, HR3was filed under the new regulations and Impartial Hearing Officer was appointed off the rotational list, upon receipt of the Hearing Request this Hearing Officer was assigned to preside over Hearing Request No. 3 acknowledging there was an impending Impartial Hearing and indicated that there were objections to consolidating with the Hearing herein. After discussion it appeared that the most practical sense to accept the assignment to the Hearing Request No. 3, while there was a resolution session to proceed and if the matter was unresolved then either treat it as a joint hearing or a consolidated hearing.

The next issue that was raised was pertaining to the parent’s request to have this Impartial Hearing Officer review the prior pendency determination based on documents and testimony which the advocates felt changed, would have an effect upon the pendency determination. Based upon the newly discovered evidence this Hearing Officer reserved pending resolution/consolidation issue and whether said consolidation would trigger the De Nova review of pendency.

The parties exchanged exhibit lists identified as District Exhibit list is IHO Exhibit 32 and Parent Exhibit IHO33 respectively. IHO exhibits list is marked as IHO exhibit 36 and IHO exhibit 37 is the extension granted in this matter.

It should be noted that regarding HR #3 Case Id No 83592 which was filed and initially this IHO was considering treating the third as a separate hearing request, however after difficulties arose regarding the district's “being sick and tired of Friday only hearings” difficulties arose regarding the availability of District Reps and district witnesses. When this IHO suggested that the Superintendent act as the district rep said appearance was waived by the district and an unavailable witness then became available

The original procedure issue regarding Case 79265 and 82256 was a pendency issue, these parties were involved in an Impartial Hearing during the 2012/2013 school year for which the Impartial Hearing Officer rendered a decision on or about June of 2013 and has been on Appeal before the SRO since that point in time with no decision from the SRO. The result of that procedure dilemma the parties litigated the pendency issue commencing with testimony on November 8th, 2013 the second Hearing date of November 15th, 2013 was converted to a settlement resolution conference which did not result in a resolution, the final day of testimony was completed on December 20th, 2013, and this Impartial Hearing Officer rendered a pendency decision on January 15, 2014 after the delivery of transcripts and submissions.

Testimony commenced on the case in chief on February 4th, 2014 the parties agreeing and canceled a hearing date in between to allow this Hearing Officer to render a decision on pendency. Hearing days were cancelled due to school cancelations and witness illness. The other procedure dilemma was that the parents sought to have hearing dates scheduled around the mother’s scheduled day off. That had been a custom and practice before the prior Impartial Hearing Officer Hearing in 2012/2013. This case had been extended after considering the regulatory factors on multiple occasions. The party’s extension on December 13, 2013 which was based upon a mutual request, a second request was granted based upon the district’s request to allow for the determination of the pendency issues, and due to the availability of witnesses. A third Hearing Request was granted on February 7th, 2014 to facilitate the consolidation of the two (2) Hearing Requests as previously indicated in this matter and an additional Hearing Request was granted based up the district’s request. Unfortunately during testimony of the April 11, 2014 the witness for the district indicated that the district had contemplated filing charges with CPS accusing the parents of education neglect for the manner that they were litigating their rights under IDEA, New York State Law, and the Commissioner’s Regulations. The parent’s countered that the district’s delays in providing witnesses was a form of education neglect. Since that point in time the parents have not requested any extensions. In addition the district took the position that they will not request any extensions and that their subsequent position is that the district will not request any extension unless the parents join in said request. The district’s motivation as alleged by the parents was that Friday was the mother’s only day off and that the district sought the mother to take time off from work in an attempt to get her fired and thereby limit the parent’s ability to exercise their Due Process rights. When this Impartial Hearing Officer declined to schedule hearing days when the parents were not available instead expanded to include evening sessions. It should be also noted that the hostility between both sides initiated two (2) years ago at a CSE meeting and continued at a CSE meeting at the end of the 2012/2013 school year when there was a nose to nose confrontation between the father and the CSE chairman. Those hostilities have continued and permeated the district and these proceedings.

It should be noted that 5 hearing days were held after the parties reached a stalemate on requesting extensions. It should also be noted that this IHO encountered difficulties with transcripts with many of the volumes losing pages and the record was closed on May 12, 2014 with the parties submitting memorandums. The parents’ submission was over 100 pages long. In total there were 14 days of testimony, however the record closed date was on May 12, 2014 and as of that date there were only 10 transcripts available notwithstanding this IHO’s request that the transcripts be provided on an expedited basis. There was not a request to extension the compliance date to receive said transcript so as a result a portion of the decision after the closed date was prepared without the benefit of the transcripts and will not reflect pages references.

ISSUES

Hearing Request No. 1 dated September 4th, 2013 filed by the parents raised the following issues: Surrounding the June 7th, 2013 CSE meeting including being handed a draft IEP at the CSE meeting, failure of the district to review the 2012/2013 school year threats made by the assistant director of special education, left the meeting requesting that the meeting be rescheduled the assistant director of special education indicated that the meeting would proceed without the parents. There was a second CSE meeting on June 21st, 2013 with prior written notice the meeting was a program review placing the student in a BOCES service program for the 2013 Summer school year services beginning July 1st, 2013. CSE meeting of August 1st, 2013 the parents complained about the CSE meeting going forward on August 1st, 2013 with JD the assistant director of special education present they requested that neither he nor Attorney Beardsley attend, when the request was denied the parents did not feel comfortable attending the CSE, and the CSE proceeded on August 1st, 2013. The parents received an IEP on August 10th, 2013 for the 2013/2014 indicating the student was to receive extended school year services at BOCES SIRS for July 1st, 2013 through August 9th, 2013. The parents challenged the CSE recommendations for June 21st, 2013 and August 1st, 2013 and further allege that the district failed to complete an annual review and failed to amend an IEP and failed to recommend extended school year services based upon the student’s needs. HR1 alleges failure to

1. Complete Annual Review.

2. Failed to amend IEP. 3. Recommend ESY.

4. Failed to provide prior written notice of the June 21st, 2013 and the August 1st, 2013 CSE meetings.

5. Failed to obtain consent.

6. Failed to comply with meeting notice requirements and that the district’s attorney was present without any knowledge of special expertise of the student.

7. CSE members participating by phone which was not on the 5 day notice.

8. Failed to allow for parent participation on June 21st, 2013 and August 1st, 2013.

9. Parents disagree with the social development section in the IEP.

10. Parents disagree with the physical development section on the IEP.

11. Parents disagree with the management section on the IEP.

12. Disagree with the statement of the fact that the student needs on involvement and progress in general education curriculum. 13. Disagree with assistant technology section of the annual goals. 14. The parents disagree with the section on IEP. 15. The parents disagree with reporting section in progress recommended special education program and services. 16. The parents disagree with the student’s needs, writing in special factors based upon the identification of student needs. 17. The parents disagree with the measurable annual goals. 18. The parents disagree with the reporting progress to parent section. 19. The parents disagree with the recommended special education and services, related services, supplementary aides, service/program modification accommodations, assisted technology devices and or services, support for school personnel on behalf of the student. The parents disagree with the student’s placement for science and special class 1:12:1. The parents disagreeing with 12 minutes of resource room 1x weekly. The parents disagreeing speech language service being decrease to 30 minutes per session 1x per 6 day cycle from 32 minutes weekly. The parents disagreeing with the deletion of occupational therapy services. The parents disagreeing with the CSE not recommending resource room services for period 9. The parents disagreeing with the student being placed in study halls without special education guidance and assistance and he is not independent in completing homework, projects, class work. 20. The parents disagreeing with not providing the student with specific designated reading instruction and appropriate accommodations.

21. Parents disagree with a recommendation to extend his school year services at the BOCES service program 3x per week for 80 minutes from July 1st to August 9th, 2013.

22. And the parents placed the student in the GOW for the summer where the student received full day program instruction 5 days per week with specific instruction in algebra, constructive language, writing and robotics.

23. Disagree with the district’s plan to provide general education art class as reflected the student’s schedule and not provide 12:1:1 science for 42 minutes as reflected on the August 1st, 2013 CSE and IEP.

24. The parents disagree with failure of the CSE to recommend specific designed reading instruction to the student as recommended by the reading evaluator.

25. The parents disagree with the CSE’s failure to recommend appropriate homework modifications and accommodations.

26. The parents disagree with the CSE failure to recommend parent training and counseling.

27. The parents disagree with the CSE failure to recommend appropriate occupational services.

28. The parents disagree with the failure of the CSE to recommend appropriate resource room services.

29. The parents disagree with the failure of the CSE to recommend appropriate coordinated set of transitioning activities. The issues raised in Hearing Request No.: 2 dated and filed on December 6th, 2013 are as follows:

1. Hearing Request No. 2 recites primarily and raise pendency issues for the July 1st, 2013 extended school year services and alleged violations of that pendency, seeking remedies for the failure to provide pendency, and sought implementation of the 2012/2013 IEP as pendency reimbursement for the GOW Summer program, and child like expenses and immediate placement of the 12:1:1 science BOCES class with instruction and lap seat time for biology class, credit for one half year of the art class removal from the 1:12:1 elective art class, provision of resource room prepared for the remainder of the school year. A pendency decision was rendered and attached hereto as IHO Exhibit 2.

The Impartial Hearing Request dated March 25th, 2014 HR3 and filed March 26th, 2014 and alleges that the CSE members including the attorney determined and concurred that no obligation to perform a re-evaluation until March 1st, 2015, the CSE determined that they would not evaluate the student until that date. Seeking and alleging the failure of the CSE to recommend and complete a re-evaluation of the student within 3 years of the last evaluation completed by the district’s CSE, and seeks a complete a re-evaluation of the student in all areas of suspected areas of disabilities as independent education evaluation at public expense.

SUMMARY OF FACTS

The first witness was JD the assistant director of special education in charge of IEPs, annual reviews, progress reviews, agencies T341, BOCES for grades 6-12. He knows the student, the family, the IEPs from team meetings, CSE meetings, and teacher observations T342. He estimates that he has attended 6-8 CSE meetings regarding this particular student, the development of his IEPs. He has contacted key stake holders and reviewed the PLP’S and goals with the guidance counselor and related service providers. In particular regarding the 2012-2013 CSE meeting, a meeting was scheduled for June 7th, 2013 T344 and invited to the CSE meeting was the related services team, OT, the resource teacher, the classroom aid, the school psychologist, general education physical education teacher, social worker and, speech/language pathologist T345. Regarding the June 7th, 2013 CSE meeting there were requests and reports from outside providers, one was received from WJ, there was no writing from Dr. M., but a report D5 from Dr. MG T346. The witness reviewed D13 an email from the witness to the counsel for the district, providing an account of the events surrounding the June 7th, 2013 CSE meeting T364. The witness attempted to rescheduled June 7th, 2013 CSE meeting providing 3 dates, the last of the 3 proposed was June 21st, 2013 T366. The witness indicated that the parents were going out of town and would be in contact with the advocates with a request for the 10am slot on the 21st. Contained in D15, a June 12th letter, D16 was an email response from the mother that they were awaiting to hear from the advocates T368, received on June 14th, 2013T368 and the witness went ahead and penciled in the June 21st, 10am slot T368, but there was no further communication from the parents regarding same. The witness reviewed D17 T370, an email from the mother to the witness regarding the June 21st, 10 a.m. CSE notice. The witness notified the invitees, said time and place of the said CSE meeting. The witness reviewed D19 the attendee sign –in sheet for the CSE meetings the parents did not attend T372, the witness emailed them D18 T374 and asked them to provide them with an opportunity to participate by phone, contacted them by phone in an attempt to obtain their participation, calling the mother’s cell phone and house phone number. The witness did not receive any communication that he is aware of from the parents regarding T375 the emails and or phone calls. As a result and due to the timing and the time related sensitivity the CSE moved forward reviewing T376 progress reports from the OT, social worker, speech/language pathologist, teachers. The report from the OT was that the student had made progress and did not think it was appropriate for the student to be enrolled in a summer program due to the fear of regression T377. The social worker indicated that it was important to continue the work over the summer dealing with pragmatic skills and the same was reiterated by the speech/language pathologist and recommended individual and group speech/language T378. The resource room special education teacher JP reviewed the year’s progress toward goals. There was regression in these skilled areas and thought that an extended school was appropriate in academic areas to help with reading comprehension, organizational skills, writing and math T380. They investigated the BOCES II SIRS ESY program 3x per week for 2 hours per session T380. There was no counseling because they were addressing the pragmatic needs of the student from the speech/language pathologist instead of a social work, and it was thought that the SLT program 2 xs per week for 30 minutes was appropriate T383. There was no objection from the attendees at said CSE. The CSE meeting of June 21st, 2013 only dealt with the extended school year but it still lasted 2 ½ -3 hours T383. The extended school year services normally start on July 1st, 2013, which is a Monday and the witness initiated some phone calls to initiate the process T384. The witness also reviewed D21, the June 21st, 2013 prior written notice to the mother and father which recommended changes of services from 3x a week to 180 minutes per week plus SLT 2x 30 minutes per week T386 based on the resource room teacher’s statement of regression T387 D23. There was a letter D25 received from either the advocates or the parents on June 29th, 2013 indicating the parents were enrolling the student in the G School Summer program T390. The district is not implementing this extended school year pendency program T392. The witness contacted Dr. M., from S for the connections program and the witness was never advised that the parents enrolled, applied or attended the program T397. The witness also reviewed D22, which was a letter from the witness to the parents, providing 3 dates July 11th, 2013, July 18th, 2013 and August 1st, 2013 all Thursdays T399 to conduct the annual review for the 2013-2014 academic program for the student, and also reviewed D27 the request to the parents for G School ESY progress reports for August 1st, 2013 CSE meeting T400, the witness does not recall receiving a response to the request for August 1st meeting T403. The parents were informed that MW and Dr. G, Dr. M. would participate by phone. D28 was a letter D28 they could participate by phone. D30 a letter from the advocates to the superintendent requesting that the school lawyer not be there, as well as any further CSE meeting not be chaired by JD but be chaired by the director of pupil personnel who is responsible for K-6 T404. The witness proposed dates on July 11th, 18th. There was response by fax on Friday July 26th at 3:40 PM JD responded on July 30th from the district indicating that it was necessary to have the legal counsel at the meeting to address the any legal issues that should be raised or legal claims that should be raised during the course of the said meeting. There was an email correspondence on July 31st, prior to the August 1st meeting offering to the parents the ability to participate by alternative means D33 but the advocates told the witness by means of a letter dated July 26th, 2013 the parents were not available July 11th, 2013, July 18th, 2013 or August 1st, 2013 dates T409. JD informed the advocates that the district did not agree to this request and the CSE would go forward. On the 8/1/2013 D3, the CSE reconsidered resource room 4 days per week of 42 minutes and 1 x weekly at 12 minutes, ELA 1:12:1 5x weekly for 42 minutes, math 1:12:1 5x per week for 42 minutes T447, social studies 1:12:1 5x per week for 42 minutes T452, SLT group 1x 6 day cycle for 30 minutes , SLT individual 1x 6 day cycle for 30 minutes T457, counseling 1 x weekly 30 min. The witness continued his review of the August 1st, 2013 CSE meeting referencing the sign-in sheet, D36 in which Dr. GM., Dr. M., MW participated by phone, JW was not able to attend due to a medical emergency and no one from the parents or WNY F.A.C.E.S. were in attendance. The witness called and emailed the parent with no response T419, and the meeting began with the normal introduction and discussing progress with the teachers and the related service providers, discussing the PLP’S, the IEP program and related service recommendations and updates. JP the student’s resource room teacher provided progress reports toward goals, reviewing quarterly report in the student’s academic areas, indicated areas of weakness and need and discussed the 1:12:1 academic setting T423. ES also participated as the speech/language pathologist giving general updates toward progress toward goals. The student’s weakness and needs were identified including pragmatic skills as an area of need. There was a recommendation for direct speech services and support T424. OT participated discussing the student’s progress toward access to the computer and support and the roll of computer technology T425, and discussions on progress and current levels T425. MW the social worker participated for the 2012-2013 school year, provided consult with the speech/language pathologist. Discussing progress was the student’s district counselor MW. The student was still encountering difficulties in some areas, working on independence, recommended continuing current level of services, T428 a worthwhile component was a consult with the social worker and speech pathologist T428, Dr. M. of S participated as an expert on autism, providing guidance and how to’s to continue, consults district and staff with monthly meetings. The witness was very complementary of the district’s staffs and having a handle on the student and their efforts to support the student including the area of self advocacy T430. Dr. M. of S recommended a decrease in an allocation of services T431, Dr. MG, the vision services provider submitted a report D5 his recommendation was his services were no longer required by the CSE and his recommendation was accepted by the CSE T433. WJ was not there but the behavioral specialist though the BIP was discussed but JD did not recall if the BIP was adjusted T436. The witness compared D49 the draft IEP with the 3 final IEP commenting on the different changes made on the draft IEP including reading phonetically T438 and there was some for the goal for homework. The student would receive assignments 100% by teacher the final IEP did not have the 100 percent as the draft and felt that it was inappropriate T439 but 90% was. The witness also reviewed the annual measurable goals for reading, the student is a good phonetic reader and the area of weakness was his comprehension and inference T440. They continued to use Read 180 to increase his textile score although the student was not getting specialized reading instruction from the district. The Read 180 is a multi-global, multi-sensory interactive program, and is not listed on the IEP because it is a component of the 1:12:1 program T448. The witness reviewed D3, page 20 the recommendations for the upcoming school year which did include a science 1:12:1 setting 5x per week for 42 minutes T447 (6 not on back of original), the witness reviewed D38 which is a prior written notice to the parents which did not contain science and also D39 a notice to the parents from the witness advising what the recommendations of the CSE were and which did not include science T449. The 5 year track schedule was discussed in the CSE meeting of August 1, 2012 D3 Page 20. The witness reviewed support aids, modifications and accommodations and OT was reduced with no direct but the OT would consult 2 x 60 /first quarter and monitor 1 x 30 /first quarter T453, The BIP was removed because of progress of the D38 T455 and was removed from the notice of recommendations dated August 7th, 2013, school was started on September 4th, 2013 which was a Thursday. The witness got a call from MS the counselor that the father had called indicating that the district was not providing pendency T458, the witness quickly called the father to set-up a meeting, prior to the commencement of school to discuss schedule and pendency T460, there was some difficulty in accomplishing same. There was an email from the witness to the parents,

D81 on September 3rd, 2013 indicating the willingness to meet before the school year started, email of September 4th from the guidance counselor MS T461 to the witness. In response the witness indicated that he left a message with the father although there was no reply, and then on September 4th, 2013 the Due Process Hearing Request was dated, filed and served by hand T470. The witness opined that the IEP from August 1st, 2013 was appropriate T471.

He is familiar with the student and identified P00 a letter from UB regarding an assistive technology evaluations T495 PP, an evaluation of June 18th, 2012 from Buffalo Hearing and Speech which indicated a diagnosis of mixed receptive and expressive language disorder, pragmatic writing language skills T497. He also reviewed a report from April 25, 2008 from EA Psychological letter to the PQQ, which reviewed by the CSE T499 PRR which is the most recent psychological report dated March 1, 2011 by AM . It indicates that the parent’s evaluation from Seedling dated May 5, 2011 PSS rendering a diagnosis of PDD/NOS, ADHD and attentive type dysgraphia which is a writing disorder in the production of written work, CAPD and surface dyslexia T519. The witness reviewed TT, the ABC therapeutic evaluation of November 1st, 2012, D38 and the TT was reviewed by the district, the witness also reviewed XX the Encompass an IEE T517 of April 2nd, 2012 which the district does not agree with the T510 educational evaluation for the 2012/2013 school year, which rendered a diagnosis of non-verbal learning disability, surfaced with dyslexia and dyscalculia T509. The witness reviewed PSS a report from KT with a diagnosis of CAPD which the district does not disagree T510 and auditory specialist ZZ a report from Dr. MG T530. The witness reviewed D5 the notice to the parents of the June 7th, 2013 meeting and the district did not send a specific invitation to the student T533, even though he was over the age of 16. The witness reviewed PN the notice for the meeting, which indicated the purpose was to “review and if appropriate revise the IEP”, but it does not indicate that it is an annual review or which IEP would be reviewed. The witness displaying contorted logic explained that an AR revises an IEP so that any time an IEP is revised it could be an annual review. The witness also it explained that based upon common practice and understanding the CSE of June 7th, 2013 was an AR T538 and IEP’s for 2012-13 and 2014/2014 both T539 which was DP1 and D49 which was the draft IEP for June 7th, 2013 CSE. JD also stated that at a planning meeting the parents would review the draft IEP or have a discussion. The witness surmises T545 that a family with experience in special education matters would know. The witness reviewed D49 the IEP draft with edit and revisions on there, which was not a Board approved and PN a notice of the meeting which did not indicate that there was a draft IEP to be reviewed. The witness reviewed D7 the meeting minutes from the June 7th, 2013 CSE T555. The witness indicated parent’s advocates were given an hour to review the draft IEP although there was a distinction was attempted to be made that the district CSE was unable to review a parent’s evaluation during a prior CSE meeting and could only do that once the meeting was concluded. The rational was that it would not disrupt another scheduled CSE meetings. The witness LLL the transcript from the March 2012 CSE meeting that indicated on Page 4 that time was needed to review the evaluations T562. The witness indicated that he did not provide the parents an opportunity to reschedule the CSE. The parents did not have an opportunity to review the draft IEP before the CSE T564 but a draft IEP was prepared and the providers reported the appropriate information T574. There was a heated and intense line of questioning concerning the June 7, 2013 CSE meeting surrounding testimony by the witness, parent’s advocates BS who was doing the questioning. During the course of the CSE meeting, the advocates raised claims of procedural violations of the IDEA T560. It was noted that the procedural safe guard notices went out with the invitations as per as school protocol, but there was no reference in the said document of said safe guards T574. The witness further testified regarding the perceived threat that occurred during the CSE meeting of June 7, that if the members of the CSE continued in violation of the IDEA it could jeopardize their professional licenses and livelihood T574. The witness testified that it was based upon BS tone, raised voice and threat to license. There was a discussion as to who had licenses, who had degrees, and who had certifications T578. It should be noted that this IHO’s observations was that JD the witness remained very calm but elusive whereas the questioner became aggressive during the said questioning. The witness questioned regarding the summary of the minutes which is only prospective recommendations. The witness reviewed D8, D9, D10, D12 and, D13 which were accounts of the members of the CSE meeting of June 7, 2013 as to the events surrounding the perceived threat early ending of the meeting and violations of the code of conduct on behalf of the father and the advocates T584. It was noted that the 6 of the sign-in form, some witness were to testified by phone but were not called, since the meeting was terminated early. The witness indicated that he did not recall if BS indicated that the meeting was over T596, but he concluded that was the case based on upon the fact that the advocates started packing up their belongings, records and paper, he did indicate that the meeting was going to proceed and as he stood outside in the hallway the father violated his personal space going nose to nose within 4 inches of said witness T598. It should be noted that both men alone would fill a doorway. The JA, the gym teacher escorted the parent and the advocates out of the building T603. The meeting was rescheduled T606 to June 21, 2013 to deal with extended school year services T608 PP. The notice for June 21st, 2013 CSE used the same language as the June 7th, 2013 notice. There was no Dr. MG, or no Dr. M. T618 on the notice since it dealt primarily with extended school year services by the connections summer program as provided by school S. WJ was not invited because the BIP was developed in connection with the district staff

T620 the aide MS P-P were invited and which was not explained on the attendance sheet of June 21st, 2013. The witness spoke with Dr. M. from S in March of 2013 regarding the process and procedures, the witness indicated that 3 dates were provided to the parents with no response regarding district’s attempts to schedule a CSE. PV was a certified letter sent to the parents, but there is no return receipt as part of the permanent record T624. The witness also indicated that the DP1 the pendency IEP that was implemented was the last agreed upon IEP, since there was no resolution and issues were still pending since the IHO did not render a decision T626. The witness indicated that he did not tell the CSE that they were in pendency placement, that the school district’s attorney was there T627. In the past the parents did the transporting T628. The protocol for transporting to the extended school services site would be done by the transportation department after determining times and places and would notify the parents accordingly. In D77 it indicated that the district would pay T630 for connection. The connection program however did not contain specialized instruction in the areas of reading, writing and math which was not reflected in the minutes T636. The connection program was not an appropriate placement because an application was not filled out T635 so the CSE had to move in a different direction. The witness and the student’s providers indicated that progress reports were sent to provide a summer placement at G, but no discussion at G took place. The witness also reviewed D21, the prior written notice and notice of recommendations, connections were not recommended due to the fact that it did not have individualized reading instruction program T635. The witness was informed by the agency that they would send the application to the parents directly and request that the parents complete and return to the agency T639. It was the witness understanding that the agency placement focuses on pragmatic and social skills and not on specialized reading or content information T644. Witness indicated in D21 the pendency placement and appropriateness was not a factor T650, but the CSE nonetheless placed the student in the BOCES SIRS program T651. However there was some mention of BOCES SIRS in the minutes, but the witness indicated that it was a small group instruction roughly 2-3, 4 students per grouping T653. There was a special class which includes one special education teacher and perhaps an aide. The setting has no general education students T652. Specialized instruction in math and reading was recommended by the June 21, 2013 CSE. The SIRS does not have a Read 180 program. The CSE did not discuss methodology T657, classification of student, profile of those attending the ESY SIRS program, but thought that they would be compliant with the 3 year 36 month age span T657. The witness was quizzed regarding the SIRS program which is housed at a local neighboring town’s municipal hall, which is a multi-purpose building T663 and the transportation department would inform the parents as to how transportation was to be accomplished T666. In the June 21, 2013 CSE meeting, it was discussed whether the social worker attended and discussed counseling needs T667. It was a hope that the student’s counseling needs would be met by bridging the pragmatic and the speech language therapy T668, without the need for formal counseling. The pragmatic speech piece would be provided through speech/language and that this could be done through small group, special education speech/language (BOCES SRIS) T669 because there was a continuing need not regression T670. There was no prior written notice on counseling, OT never notified the parent of what days of the week the SIRS program was. Or that the SIRS was 3x180. The reading program it was 3x180 and 2x30. The BOCES program was 9 hours per week, and was not a full day academic program, it was hoped that 30 minutes of group speech would supplement and fill the needs for counseling T673 but speech was reduced T674. The witness indicates that he gave the CSE his opinion on extended school year even though options were not relevant because of pendency. JD explained this to the CSE and regarding D21 other placement options, but prior written notice did not indicate other options or why they were rejected. The witness reviewed D23 the regression statement prepared by JP, but there was no change or reference in the body of the said document that was reviewed by the CSE and was not sure if the following had participated or had said regression statement in front of them, Dr. MG., Dr. M. and WJ T680. The witness reviewed D25 T683; the pendency program extended school year at C. It was not offered or recommended T683. The draft IEP was provided to the parents T684. Arrangements were made through the transportation department T684. The witness was then quizzed when he was aware that the parents were not available on Fridays, he indicated that the 2012 hearing did only occur on Fridays T689. The discussion of the scheduling of the August 1st, 2013 CSE meeting the witness indicated that Fridays were not available due to his interpretation of the rules and regulations that a CSE meeting had to take place to review a student’s program as an annual review within 364 days of the last review, even though there was a review on June 7, 2013 and progress was reviewed on the June 21, 2013 and all dates proposed were on Thursdays T689. The witness reviewed D29 a letter to the parents notifying them of the telephone participants T695. There was D30 a letter to the district office requesting that JD and MW not be present at CSE meetings T695, D33 an email asking about the availability of the mandated members. They were not available on August 2nd the date requested by the parents and the letter indicated that the witness contact the mandated members, but he did not hear back from the parents. The district rejected that parent’s request that the school district counsel and the witness JD no longer be involved in the student’s CSE meetings T697. D32 there is a letter dated July 30, 2013 from JD, and a July 31, 2013 response from the advocates regarding said meeting. The witness indicated that the CSE meeting had to be held before August 8th, 2013 because of the Annual Review notwithstanding the parents’ request. This is another example of the district selectively enforcing rules to stick it to the parents in retribution to the parents and advocates objection to procedural violations which are fundamental to Due Process Hearings but which the district’s administration feels is an obstacle to the district imposing its values of what is best for the student over the opinion of the parents. The witness conceded defiantly that August 1, 2013 was not a mutually agreed upon date and time, the PLPs were discussed on June 21, 2013 T667 June 7, 2013 was convened and closed without an IEP so in reality the August 1, 2013 CSE was a re-convened CSE from June 7th, 2013 T713. The witness was quizzed regarding a specific invitation to the student to discuss his post-secondary goals and transition services. D29 was reviewed T705 the witness claimed the team verbally asked the student to attend T705 in the past T706 but did not know for August 1, 2013 CSE. A report from guidance counselor MS and D37 the CSE meeting minutes, it was not clear nor was there a notation made whether or not those who were participating by telephone that were not there for the entire course of the meeting by telephone how and why not they were properly identified on the minutes of the meeting D37 T708. The witness had clarified that the district’s lawyer was invited on August 1, 2013 meeting for legal perspective T714 the odd thing is the district witness was critical of the parents for failing to meet with her without the advocates but the district did the same. Ironically this double standard was not apparent to the district staff that is blinded by the emotions. The witness reviewed D29; it did not properly identify an IEP or a draft or clarify of same, or which draft i.e. D49 T715. The witness indicated that on August 1, 2013 they reviewed the JP’s progress reports, the read the parent’s D the draft IEP from 6.21.13 CSE T717. The witness reviewed the pendency D1 the IEP with varying goals 1, 2, 3, 4, 5 and 6, T733, T737 comparing to D37 T723 the prior witness of notice of D38 and the OT report of ABC therapeutics included in D38 T125. The witness reviewed D3, Page 14 the physical development section he was not put on notice of the meeting T740, there was a question on the increase on recommendation of goal number 3, did not see Dr. G., no OT, no vision services. August 1, 2013 was the first time TT was reviewed T744 and there was a focus to develop PLPs for social development PLPS, services and the implementation of the IEP which indicated that the transportation should be normally resolve after the transportation department contacts the parents. Regarding counseling D1 had 1x 6 for 42 and D3, Page 20 1x week 6 day cycle for 42 minutes on a consult T745. The prior written notice did not provide notice of a change and MJ was not there. D3, Page 10 the student is reading at lexile score of 865, and 5.5 reading grade level, the 5.8 the student completed 9th grade T761 so the student is 4-5 years behind grade level 778. There are no goals to use to measure the lexile score, they reviewed the encompass report, there was a fact finding of surface dyslexia, but no normal formal diagnosis based upon error patterns. No one disagreed at the August 1, 2013 meeting of the report which indicated surface dyslexia T765. Dr. M, Dr. MG and MW were not there. The witness reviewed XX, Dr. S. report recommending reading programs but did not specifically recommend reading 180 T776.

JD’s reviewed D38, T799 PJJJJ, D39which contained numerous hand written notes and was a page by page of the witness’s handwriting and what changes were made for the draft IEP into the original IEP T802. The witness also reviewed D49 and PD T820, Page 2 was a cover letter to Parents with TL changes IEP but it was unclear which one T824. The witness reviewed D3, Page 10 reading needs, are identified, but the CSE reviewed annual goals for word reading. Page 19, Goal 2 the student will correctly answer inferential question with 80% accuracy T828 Goal 2 is to address D29. Read 180 was not recommended by the CSE T837; even know the student started it in 8th grade T833. The witness reviewed XX, Page 10 the report, it was reviewed at the August 1st, 2013 CSE meeting. But the witness was unsure that the Read 180 met the recommendations in YY T836 the duration and frequency of the Read 180 was not discussed T840. Regarding D3 Page 12 was a question of whether the statement that despite the districts attempts to encourage and arrange for parent participation to parent did not attend. There is a letter dated, a report exhibit PK a letter to the district, online parental concerns were also listed in the Hearing Request of November 12th, 2012 T845. The witness was quizzed regarding the Read 180 and whether it fit into the recommendations of XX T846. The witness was unsure about vocabulary, there was no formal dictation T847 the CSE did not address. There was a reference to deliberate writing activities T857; there was a discussion of a 12:1:1 program would fit the student’s math needs T855. The witness reviewed D37 the meeting minute notes, not sure if Dr. S.’s IEE recommendations was reviewed T856 and whether the Read 180 regards to the Dr. S’s report and whether it provides services and was appropriate to provide services to students with autism and dyslexia T859 as per Dr. S’s report but there was no recommendation for dyscalculia. The report also indicates that the student had dyscalculia, difficulty calculating, but T858 Dr. S was not invited. The witness was quizzed regarding DSM IV, the 315-1 regarding dyscalculia and the August 1st, 2013 CSE regarding the social development levels of support regarding MW who provided crisis support and self-advocacy T864. The witness reviewed SS the May 5th, 2011 evaluation of self advocacy and potential for crises in the relationship to D3, there was a self-advocacy goal, coping, strategies, stressors, no specific goal, but the accommodation dealt with potential crises, but was not an annual goal T864. The witness believed the parents had Dr. G.’s report. The witness reviewed Goal 5, Dr. M, Dr. W or the WJ was going to provide the services in speech, counseling or his consult. It was reduced 4x per year or once a quarter versus once a month, was unsure whether it was a behavioral consult or autistic consult, there is no reference to the 5 year track T878 D3. The witness was unsure what the 5 areas of reading T880 or whether system 44 was a precursor to the R180, there was a summary compilation but no manual review by the CSE. The witness reviewed PPPP the board action sheet for the meeting August 1, 2013, which referred a special class; science 1:12:1 which the witness claimed was a clerical error T882, similar to the clerical error on D3 T884 which is D1. The witness was quizzed whether WJ was at the June 17th, 2013 meeting and the June 21st, 2013 meeting and at the August 1st, 2013, she was present at the June 7th or the June 21st or August 21st, 2013 meetings T887. On D3 there was no attached report T891 which is D3. The witness reviewed RRR a behavioral consultant update report dated May 30, 2013 signed by WJ the behavioral specialist from BOCES and on the BIP. The RRR was reviewed T894 but did not happen regarding the replacement of the BIP by the behavior strategies T898 in the math section of the IEP, however the body of the background of the report indicated that FBA was performed in March 2012. The witness reviewed D3 behavioral strategies but the BIP was not recommended T900 but not given to the parents regarding evaluations of the BIP T902 a prior written notice was based upon a review of August 1st, 2013 CSE. The witness reviewed OOO which was a letter from Impartial Hearing Officer K dated August 29th, 2013 enclosing a copy of his decision from the prior Hearing. The witness reviewed D81, 82 and 84 regarding setting up a meeting with the parents before the start of the 2013/2014 school year T900 and RR a psychological evaluation dated March 1, 2011 which was the last district evaluation T908. The witness reviewed the annual goals D1, Page 19, Goal 1, T909 regarding the student’s PLP’s on 8/1/2013 for f writing, Goal 2 T913 the CSE expected 80 % accuracy by June of 2013 but was at 74 % at 8/1/2013 of accuracy reading level seeking a 6% increase of accuracy in a full school year, Goal 3 the student was at 63%, T915 which was shared with the CSE. The Goal 3 reporting assignment which was based on 5 of 5 times of 90 % accuracy, T918 pull samples measurements were taken by the provider, JB and AC. The witness did not know regarding the grade level, there was no math teacher at the CSE T921. The witness reviewed Goal 4 T920 the 10th grade level report based upon 10th grade level, including word problems the 1:12:1 the reading level at the math was at the curriculum level T921. The witness reviewed 12/3 the math exam no, the witness reviewed Goal 5 T927 regarding managing stress, but there was no timer used. The witness reviewed Goal 6 T930, the appropriate topics as identified by the speech and language accuracy, was also not quite sure how many vollies, the present level of performance were based upon the social functioning embedded in the student’s ADLs, since the appropriate goal and dealing with pragmatic speech T928.

The staff felt the home work accommodations of only 30 minutes of graded home work should be removed. The CSE believed that the student should be able to complete the homework independently but with the assistance of the 9th period homework support T940 the home work accommodation was no longer needed for homework accuracy because it was regents T939, The ninth period academic support was 30 minutes after school for assignments and organization. The student cannot complete his homework in some areas. There was progress but no prior written notice on the removal of the home work accommodation. Assisted technology included Kurzweil, word processor and assisted technology software T943, there was training but not offered to the parents T944. The team meetings included the parents and the student “possibly” t945. The Dr. M. consult was reduced from 1x monthly to 1x quarterly because of progress T945 and Page 17, 1:12:1 and adult support T949 except there was none in PE. In 2012/2013 the student was in PE but not in chorus, he was placed in art. In 8th grade he was placed in art and there was a class room aide T949. In PQQQ, 1:12 elective which was self-contained art class

T951, there was an aide but no special education teacher T954. The student was placed in aquatics for science T956 with no regents and no labs T956 Transition services were discussed at the August 1st, 2013 CSE which was provided by the special education teacher JP and in resource room. The witness was quizzed regarding August 1, 2013 parent training came under Dr. M.’s services T965. The witness did not know if the student was exempt from foreign language T969, but the 1:12:1 art special class is not a special class since it does not have a Special education teacher T970 but only special education students T970 it’s a smaller general education class with an aide T971, RR was to fill required mandated for 3 year reevaluation T972 and a review of D3 showed the appropriateness of the triennial evaluation which occurred 3 years earlier March 1, 2011 T972 D3 shows the date of the next revaluation to be on March 30th, 2015 T973. The witness reviewed IEE, PXX, the witness was not sure if the CSE had discussed the IEE as Dr. S.’s evaluation within the 3 year. Dr. S. is an educational PHD, but not a psychologist, so the question arose if the psychological educational evaluation was performed and that would require a statement of explanation from a school psychologist T975. The psychological evaluation of March 31st, 2011 was done by JA a school psychologist. P-XX was performed by RS an educational evaluator without support for the school psychologist's explanation of same. The question was whether the CSE could adopt an IEE as its own evaluation. But the witness did not know if the XX was adopted but earlier testified that it was used to support the mandatory 3 year evaluation JD reviewed D109 the IEP from the from the 3/22/2012 CSE meeting which reflects a annual review date of 3/22/13 and a triennial review of 3/7/2013. He also reviewed IHO 5the IEP from the 5/17/2012 CSE meeting chaired by LC and JD was not present D110. IHO5 reflects an AR of 5/17/13 and a triennial reevaluation date of 3/30/3015. JD surmised that the triennial date was changed at the 5/17/13 CSE meeting.

Inferring that was when the IEE of RS was adopted by the district as it triennial evaluation. A review of D111 the meeting minute notes for the 5/17/2012 CSE meeting Said notes contain details for example LC “reviewed RDG eval (Encompass report)”. There is no notation regarding adopting said RS report as the districts three year reevaluation. A speech report was reviewed and the advocates did not agree with the result and requested that the evaluation be done by BH&S. The RS report is referred to as a reading report and the parents did not agree with the speech report and requested an IEE. The witness later surmised during last year’s Impartial Hearing that there may be an error with dates T1656. Also there is no reference in D111 to adopting the RS report as a three year reevaluation T1660. The witness surmised that the date may be inaccurate T1661 but felt that it was best to keep moving forward T1661 but it was not his position to determine if it was an error of if the date should be 2015 T 1663. . The CSE did agree with the recommendations, and there were no oppositions thereto. The witness was questioned regarding RAVEN RPM and APMT which showed a score of 76 below average T982 with average being 95 T983 and the BMT Behavior there were XX2 which was a letter dated April 2, 2012 which was a summary of the student’s scores on verbal and non-verbal learning ability tests which indicated that the scores should not be interpreted separate from the narrative by RSs S. T985. Homework was completed in 9th period in 2012/2013 by the aide who is also certified as a special education teacher T987. The CSE on August 1, 2013 eliminated the homework accommodation but JD was unsure if it added 9th period homework anywhere T990. The IEP to do intake for SIRS summer program, before July 1, 2013 to be implemented T993. The witness was not sure about an FBA on August 1st, 2013 T996, there was an OT consult from ABC therapeutics dated November 1st, 2012 T995 which was reviewed by the CSE, which states student needs very specific program or there was no FBA on D3, T996. Regarding the transition planning questionnaires, the witness was not sure if the student was living at home and was assumed that he would continue living there for the next 3 years T998. There were no plans for the student to move out. The witness was no sure about D33 T1014.

On redirect it was indicated that JP had setup a pre-CSE conference on or before the June 7th, 2013 CSE T1011 but the mother was unable to attend T1013, there was a threat about professional license by BS T1015, there were no recommendations for an IEP when the meeting ended T1015, there was a follow-up meeting for June 21st for extended school year T1016, to August 1st for the upcoming 2013/2014 school year. The witness reviewed P-D the draft IEP received by the parents on 7/17/13 recommending Summer in the Sun ESY for 7/2/12 to 8/10/12 and the BOCES 2 Southside program was for 7/1/2013 TO 8/9/13 ESY school year. The reviewed BOCES SIRS was recommended at the June 21st, 2013 meeting the witness reviewed D22, the CSE members were all available on July 11th, July 18th and August 1st T1018. There was a letter requesting on D30 a code of conduct which was sent to the parents to provide an email website link T1019 regarding the draft IEP the witness believed that he maybe hand written changes and notations at the August 1st, 2013 meeting that had been previously submitted the draft to the parents in anticipation of the June 7th meeting T1020. The witness reviewed PJJJ the June 4th, 2013 Page 6 and 8 the notes and the changes were with the 2013/2014 school year which was printed for the June 21st CSE meeting. XX and D was sent to the parent VZ and XX T1028 the May 12th CSE for the 2012/2013 school year, was not changed by the witness as he was on medical leave T1029, the parent did not attend the team meeting, it depends on whether the invite and evaluate the IEE at the CSE meetings and also who is at the meetings and who is familiarity with the area and the parents did not invite him either T1034. PP had a clerical error but the IEP was not amended, raising a concerns and hearing requests 6 months later was too much of a time lag and the ABC therapeutics for the 2013/2014 consult, no progress. The projected dates for team meetings but the parents did not attend, on D3 note there were no changes, because the tri-annual 2015 goes back to prior IEP, they refer to the UB evaluation to Criswell Speech/Text Software. The witness claimed in his view the clerical error was not corrected by an amendment basis of the Hearing Request being filed by the parents. Although it is the experience of this IHO those IEPs can be amended in a resolution session or CSE and often are. This decision is based on has contributed to the promulgation of litigation against the district. Instead of correcting the errors this witness is of the opinion that it would be better off with an error filled IEPs T1038.

The first witness on March 28, 2014 was MS the student’s guidance counselor and who previously testified in the pendency hearing and as a result of the witness’s background qualifications and roles of her duties and responsibilities would not be recited herein, she is responsible for 280 students T1077 and has been assigned to the student since January 2011 his 8th grade year T1077. The witness testified regarding the events surrounding the abbreviated CSE meeting the occurred on June 7th, 2012 and it was acknowledged that it was a short meeting in RM 122B at the high school which is located off the main hallway, but next to a classroom T1080. The meeting commenced with introductions and review of the Anti-Bullying policy in reference to the Olweus Policy T1081. The meeting was recessed taken a short version of the policy was reviewed T1083. The drat IEP was reviewed during a break then the advocates objected to the purpose of the meeting which was not in the view of the advocates in compliance with Part 200 of the Regulations T1084. The witness recalled that voices were raised by BS the meeting did not continue, there were threats regarding litigation certificates T1085 there was a 2nd break and a review of the IEP which lasted 45 minutes to continue the meeting. The witness indicated the JD tried to keep to the proper decorum T1086. The witness indicated that the voices were raised by the father T1087, stating that it is all about the money, JD took a break and escorted people out of the room and into the hallway, there was a disturbance in the hallway in which the witness heard the JD tell the father “to get out of my personal space” T1088. The witness had her back to door, there was finger pointing by SB. The witness later clarified t it was BS threatening that if the committee continued there would be an violation of Federal Law, threatening a Federal Court Action with license and certificates were being threaten or pulled T1089. No one said anything because there were all in a state of shock, and the OT indicated that they were only trying to help the student T1090. The witness reviewed D9 the handwritten statement prepared at the conclusion of the meeting T1092, which indicated that the body language and the tone of the voice was demanding and insisting and was viewed by the witness in an attempt to intimidate and disruptive people at the meeting T1093. There were threats and the witness commended JD for keeping his composure and not raising his voice. One of the issues was regarding the IEP planning meeting and the advocates indicated email that they did not want to attend thinking it was just another team meeting T1095. In all the meeting lasted 1 ½ to 2 hours. The witness never saw anything like that in 30 years she was stunned in silence, she was frustrated because they were trying to help the student and they were just faced with obstruction T1101. There was a follow-up meeting late in June that she did not attend, because she was dealing with parents and students who were notified that they would not be graduating based upon failures T1101. At the end of the school year she received an application for the G service school from the parent, which was completed and sent out. Based upon the fax receipt which was D6 it was done on June 18th, 2013 prior to the June 21st, 2013 CSE meeting dealing with the extended year services for the upcoming Summer school year which was to commence on July 1st, 2013 T1106 D106. The witness reviewed D36 IEP from August 1st, 2013 CSE meeting which was held in RM 122B at the high school, there was no school but the meeting started at 9:00AM T1111 and lasted until 1-1:30PM. The parents did not attend nor respond to calls from JP T113. JP the special education resource room teacher reported on progress T1113 in 12:1:1, decoding from other teachers applying for next year indicating that there was real progress in social/emotional academic areas. The reports from the ELA, Social Studies, Math and Science, progress were reported by JP and recommendation continued that the 1:12:1 placement T1114, there was no objection T1115. All the room felt that the 1:12:1 was appropriate T1115.The speech/language therapist ES indicated that the student was making progress and recommend continuing speech/language services, group and individual T1116. OT wanted to discontinue services, but they kept on as a consult 1x per quarter T1119. The witness reviewed D3, Page 22 the OT consult, the consult would take place in the first quarter, but the witness felt that they were flexible if they needed more they’d would do more T1118. MW was present by phone T1119; he progressed with problem solving and recommended continuing counseling T1119. Dr. G participated by phone and recommended discontinuing vision services T1120, the group agreed and with his recommendation WJ, the BOCES behavioral consultant commenting on the student’s behavior intervention plan, did into appear due to an emergency with her daughter but sent in a report. It was recommended not to continue the BIP. It was discontinued because it was not needed in the high school T1121. Dr. M the behavioral consult was continued for 1x 40 for the first quarter T1122, it was reported that the student progressed with the 180 reading program and ELA T1124 was continued self-contained to 1:12:1 again there issues were logistics, scheduling classes T1125. The witness reviewed D8, Page 20 there was not enough open spots on the schedule to make everything fit and not enough periods caused in part by science which was at 8 x per 6 day cycle, because of 2 extra lab periods T1128 and its conclusion was a typo. All the members participated at the CSE meeting were pleased with the overall progress there were no significant changes from the prior IEP T1129. There was an issue regarding homework. The IEP indicates that the student would only be graded on the first 30 minutes of his homework assignments T1130 and that anything other 30 minutes would not be graded T1130, but the CSE felt that it was important for him to complete his homework because it reinforces learning and acts as a study guide and is beneficial T1131, so they felt that the student should be responsible for his homework. The 9th period afterschool was an academic program to assist the student with homework completion which was contained in the 2012/2013 school year into the 2013/2014 school year T1132. The witness reviewed the process the draft IEP handed out with all in attendance and everyone takes notes makes notes ion them T1133. D49 for the August 1st, 2013 CSE reviewed there was a draft IEP from the 2013/2014, but MS did not make any notes T1134. They were reviewed by the classroom teachers and the related service providers, there were team meetings 1x per month, but there was no contact by the parents. The father called the witness and asked about pendency T1136 and why there were no science, she contact JD who deals with science. The witness reviewed a series of emails 82, 83, 84, 85, 86, 87, 90, 91, 92 and 93. D96 dealt with some of the assisted technology information of the computer, laptop and the math program recommended T1160 by UB, that the teachers felt was not appropriate for the student. They used it to prepare tests and is cumbersome and not user friendly for taking of notes during the class. TO the evaluator did not appear for an observation but participated in the report. They were not followed up because they were entering content area dealing with graphs, which you cannot use the program for. The witness reviewed D102 which were emails from the witness and parent back regarding team meetings, JD attendance and the student’s attendance at same T1162 in which the parent T1164 asked the student be reassigned to a different chair other than JD T1165.

There was crisis at school at the change of the semester and mom called MW the student would not get out of the car, MW the social worker and the classroom teacher tried to talk the student out of the car so that he would take the exam that was scheduled T1107. The next day was difficult for the student. The student who did not want to go to the pendency general education art class, the student wanted to go back to self-contained T1169; he rolled-up into a ball a sobbed T1169. He asked that MS talk to his mother; she complied and informed the mother that he did not want to go. The melt down was severe; the mother indicated that she would talk to the father T1171. They were surprised because the student always transitioned well T1172. The student indicated that he did not like the bigger class because it moves to fast T1172. The issue was discussed at team meetings with Dr. M. who worked with the student on self-advocacy and problem solving, and the student wanted to have his voice heard T1173. The student was unaware of the 5 year plan. She met with the student and blocked out schedules for the remaining years of his high school career and the student realized that she was not able to get all the classes in within 2 years T1175. The witness reviewed a series of emails; she was concerned about the pace of the special education hearing that continued to be drawn out and created undue pressure on the student T1179. The student hears talk at home about advocates. The student is loyal to his family and the school causing conflict, the student resulted in both sobbing and perseverating and went back to play with his power rangers which was a safe place, he was told or feels that “only babies do that “ T1181. The witness indicates that there had been discussion in the school building that the long hearing process could constitute educational neglect T1181. Plus MW has asked the parents to come in and talk about parent education T1182 and had been invited to team meetings, another concern was that it was her understanding that the advocates have stated that they will keep the student in pendency until he is 21 T1192. There was another incident transportation, the student did not want an aide on the school bus because it was embarrassment T1193., however the district cannot just waive certain elements of the IEP, and the witness was of the opinion that over all that the 2013/2014 IEP was appropriate T1199.

On cross examination it was acknowledged that the witness is permanently certified social studies, school counselor and a school district administrator T1200 has training in the IDEA from school associations and journals. She was familiar with the student’s disabilities, dysgraphia, dyslexia, non-verbal learning disability and, dyscalculia mixed expressive and receptive language disorder. The witness reviewed SS the neuro development pediatric evaluation dated May 2nd, 2011 when the student was 13 yrs. Old which contained a diagnosis of PDDNOS, T1205 and ADHD an inattentive type T1208. Although was not familiar with the CAPD diagnosis contained in TT the evaluation from ABC dated November 1st, 2011 T1120 in YY, RS’s IEE. The witness also reviewed TT, WW, XX were not specifically reviewed by the CSE on August 1st, 2013 T1211, T1212, however it was contained in the prior written notice D38. An issue was raised regarding P-N the CSE notice of the student at 15 years old at the time was invited to attend the CSE for transition planning and the witness repeated that the parents did not want the student to attend T1226. The code of conduct was reviewed, but does not specifically reference CSE or parents conduct T1225. The parents requested that the CSE of June 1, 2013 review 2012/2013 IEP T1226 PJJJJ, D49 P-D all having different dates T1244. The witness acknowledged that the June 21st, 2013 CSE dealt with the extended school year T1238 that the August 1st, 2013 CSE dealt with post-secondary goals. The witness reviewed 49, the draft IEP for June 7th, 2013. On August 1st, 2013 WJ’s written report was discussed T1240, JP gave a progress report based upon the student’s PLPS and the witness reviewed DP1, D37 his progress was monitored through the year T1247 and regarding transition wanted to attended college after high school and wanted to live independently T1249. The witness reviewed DP1, Page 313 goals 1, 2, 3, and 4 and the speech/language therapist progress reports were discussed T1251. The DP recommended speech individually 1x weekly for 42 minutes and group 1x weekly for 42 minutes, but the D3 state goal 1x 30 per 6 day cycle and individual. The witness stated that the IEP was changed to reflect the services that the student was getting T1258. Discussions were surrounding the math 190 program and whether the student needed a refresher course at the beginning of the school year T1266 but that is not regression T1266. Regarding technology laptops and thumb drivers were discussed T1271 because the mother was concerned about carrying books, binders and laptop back and forth to school, but the laptop was necessary to access certain aspects of the student’s homework which was important to create study guides and reinforce material learned. The witness was quizzed regarding counseling, the reading program regarding comprehension, fluency which was 5 grade levels below his peers T1276. This IHO warned the advocates that repeating the same questions to the reading to someone more familiar with the reading program, or reading progress could be deemed to be repetitive T1285. The witness indicated that all of her 290 students that she supervises on read 180 T1291.

The witness reviewed D3, Pages 14, Goals 1 T1319, 2 T1320, 3 T1320, 4 T1321, 5 T1321 and 6 T1322, parent’s WW T1325, Page 3, D38 T1327, Page 2 the ABC therapeutics evaluations, D3, Page 20 T1327 which were the needs include fine motor the CC is continued based upon a 2011 report, continued direct support, continued in-direct because the OT provided did not think that the student needed that level of support T1328. The witness reviewed JJJ the draft the IEP, the witness did not recognize, but the last two pages are WW T1330. The witness indicated that the student was not able to complete his homework independently and in T1330 9th grade received academic assistance to reinforce learning and was continued under a prior year to reinforce learning T1330 and was not on D3 because it is not a special education n service T1331. The witness reviewed DP1 and was not on D3 it was an independent reading review class notes during or after school was removed T1337 he does use time with JK in 9th period, there were issues with speech, OT at the CSE August 1st, 2013 meeting. There was a modification of the team meeting from monthly to quarterly, there was a reduction of team meetings because information could be accessed from the parent portal website T1336, and the witness reviewed DP1, Page 17 regarding adult support in a 1:12:1 classes except for PE and chorus D5 T1337. Regarding graduation requirements and electives; student needs art which was a 1:12:1 T1441 self-contained class. There was health computer and management for life T1338. The witness reviewed PQQQ course registration sheet for the 2012/2013 school year, the advisor transferred information to a data sheet and was emailed to SMG. However, when the parents signed off on it in the 2013/2014 it listed 2012/2013 school year T1147, which was another clerical error T1147. The father only signed the draft because the finals are reviewed at the annual review T1350. The witness reviewed IHO14 and B schedule of SMG the schedule for the 2011/2012 school year second semester, 2012/2013 when the student was in 9th grade to bust class and facilitate transition. The witness reviewed NNN the 2014/2015 registration which was a collaborative effort. The student was registered in a general education art class, studio art T1356. There was a conflict in the schedule there was no options, health T1361 was at its capacity and based upon the pendency determination art class in December 2013 for the 2012/2013 school year. The witness informed the parents but there was no reply or discussion T1358. The student had no electives in 2012/2013 because they did not fit in T1359; art was not a special education class but was 12:1:1 with general education student but it was filled with classified students T1364. If there were transfers and other students (general education) could have been placed in there but the aide acting as an aide is certified SET T1364. The internal destination was self-contained. The witness reviewed OOOO email between the mom and MS and back T1369, samples of work a series of emails, art teachers fill-ins, a previous weekly reports and there were drawings and pictures and the students’ were 3, 4, 5, T1374 there is no curriculum modification for art T1375. The witness reviewed KKK T1376 MW and SW emails QQQQ T1389, RRRR, T1390, as of March 18th, 2013 the student was failing ELA and algebra T1393 SSSS T1396. The witness MS the guidance counselor was questioned about post-secondary transitional planning they would deal with issues of occasional employment and independence living which would involve community participation, vocational education, filling out employment applications, learners permit, CSE and FBA issues, vocational/functional evaluation dealt with OT and PT progress and secondary T1404. The witness was questioned regarding DP1 whether a copy was sent to the parents, VVV a FBA created in middle school T1406 8th grade. P-F the IEP from the CSE of August 9th, 2012 references DP1 which references the BIP along with attachments or in file T1412 with data collection sheets of T1414 the Woodcock Johnson, the witness was quizzed regarding 8, 9 and 12, VVV quarterly T1417 checklist and consult which are not being used notwithstanding pendency T1419 changed from a monthly to a quarterly basis. The witness reviewed LLLL emails back and forth about team meetings T1421. Body language, the witness had psychology courses at and taught at VM high school and the CSE meeting went south real fast T1427. At the August 1, 2013 CSE meeting they reviewed OT June 7th, 2012 consult, the speech/language therapy the monitoring 2x 6 day cycle, T1429 and resource room daily T1430 and biology would be off site physical education T1430. The witness reviewed NNNN related services by needs are assigned T1431. In the high school is designed and broken into 3 houses, one in the high school, house places are random, there is not pure academic design so students mix with students from other houses T1432. The witness was of the opinion that the student was capable of doing homework, could do the work but choose not to at times and can do work independently T1434. The witness reviewed August 1st, 2013 CSE discussion only appropriate placement options was 1:2:1 team meetings on Fridays T1435. There was a phone in by the parents and there was input from UB regarding the math program without any changes T1437 the student wanted the general education self-contained art T1437. The student wanted to stay in his prior art class and not the new art class he was very upset T1439 but the district placed him in studio art T1440, the student asked the witness to call the mother and see if they could make some changes, the student was very upset and crawled into a ball the witness was concerned about education neglect and the district considered filing an education neglect as a result of the parents perusing their right under IDEA, NYS Law and the Commissioner’s Regulations T1445. The witness felt that the blended class was appropriate and it was not on the prior written notice and the witness reviewed D38, D37.

The next witness was MW the school social worker at OP for 7 years, T1456 7 years at BOCES as a social worker, 15 years at BS College training staff development, student was on her case load for 9th and 10th grade for the 2012/2013 and the 2013/2014 school years T1458. She provides counseling as a related service on a weekly basis T1458, she meets with the speech/language pathologist 2 per month it is a collaborative effort with social interactions and social skills T1458 and the same things for the 2013/2014 school year. She has attended 3 CSE the June CSE which is the annual review, planning the next year T1459; she was at the June 17th, 2013 there were discussions concerning the code of conduct T1460. There was a recess granted to review the code of conduct a copy was provided the meeting resumed they were sharing information and perspectives T1461. The meeting started getting tense, there were load voices, there were interaction between the advocates and JD, and it was not pleasant T1462. The meeting escalated the father threw sheets of paper at JD T1462, he was very angry, JD tried to calm the father down and T1462go on, it was the draft of the IEP and discussion concerning the IEP. The advocates and the mother felt that the IEP was not appropriate the district almost always uses a draft IEP and reviews T1464. They attempted to contact the parents before the meeting to review the draft, which did not occur T1466. The impression that witness obtained reading body language of the parents was that the belief that the letter was not shared with the advocates and was something they should have T1470. They attempted to proceed, there was a long break to review the draft IEP, dad was upset and tossed the paper at JD, one of the advocates, threatened to contact State Ed and revoke people’s licenses, there was no responds everyone was stunned, JD attempted to escort the parent’s advocates out of the office the gym teacher took over, could not see or hear anything as the parents were leaving and they wrote letters as to what transpired T1476. The June 21st, 2013 CSE meeting they worked on extended school year regarding BOCES. The Boys & Girls Club T1479 it was not an adequate educational program T1479, there was a discussion regarding the SUN program, the parents did not participate, but were invited, they tried to contact the parents and were not aware of any response, there was a prior written notice recommending continuing speech/language, the witness was on vacation for the August 1, 2013 CSE meeting that lasted about 45-60 minutes on the phone T1483 they discussed counseling goals for the student, programs and PLPs T1484.

The witness was quizzed regarding D49 into the goals and recommendations for the IEP in the 2013/2014 school year T1488 based on progress the goal was inherited from the 8th grade T1490, the student had good understanding question of relevance to high school in his work T1490. Regarding the CSE meeting of August 1st, 2013 T1491, there was a discussion about the goal on D3, Page 19 adopted after the discussion, did not recall this was the first time she participated by speaker phone regarding the 2012/2013 school year the progress monitoring T1493, attempted and developed goals, it was very difficult, teacher reports in the classroom outside of courses situations he was dealt with in problem solving. The witness reviewed D48 a progress and counseling notes, Page 8 progress notes for the 2012/2013 and found two pages were wrote into the PLPs T1494, at the August 1st, 2013 CSE meeting the PLPs were not objected to. At the end of August MS contacted to setup a meeting moving forward, the meeting never occurred, T1498 following the implementation of the pendency the student broke down. The student was sobbing and requested to contact mom another crisis was when taking re-photo, mom wanted he and was nervous and scared, immobilized and didn’t know what to do with T1501. Another time with the car getting out to take an exam for social studies, the social worker and the social studies teacher attempted to get the student out of the car in order to take the test. He was scared about the test T1501. There was an issue of on class the student did not previously have a problem T1516 transitioning either at semester break or at the start of the school year the student did not want to leave his excising class because his friends were there T1508. The witness reviewed YYY, the student’s voice it was important to be self-advocate which is something they worked on in counseling T1518, the student wanted them to fix it and change it. They searched for answers they contacted the mom and she tried to calm him down, there was role playing. The student ended up missing art class, the mother was going to talk to the father. The student did not want to go back, they did contact Dr. M. to see what were the most effective ways to deal with issues, but never had a transition problem before at a high school , PE etc… for that they were concerned it was not a double bind they worked on problem solving skills for the student and self-advocacy, but it appeared that his concerns and interest were not being followed his self-awareness has grown by leaps and bounds T1520 analyzing development in how he’s thinking T1519 The witness reviewed D3, Page 3 the PLPs pages 3-17 T1525. The members of the CSE did not disagree with anything T1527; regarding the homework accommodation the witness thought that the student could do homework with support T1534. The witness reviewed, her duties include counseling CSE meeting, community and crisis intervention training, problem solving and parent education T1535. She is trained in IDA, commissioner regulations T1537; student is classified on the autistic spectrum with PDD NOS, has attended 100 hours of in-service T1537 and has counseled 20 students. The witness reviewed VVV the checklist, RRR T1540 the BIP T1541 was not attached to the IEP and was questioned regarding counseling goals and the SURS program and progress was monitored by provider observations. The goal was to calm the student down so he could engage in problem solving skills, managing stress so the student does not shut down.

It was the conclusion of JP testimony regarding Exhibits J109 that was never revised nor was IH05, on cross-examination the May 17th, 2012 meeting if there was a change in the evaluation dates that were discussed at the CSE meeting is what the witness was waiting for and did not want to send out consents for evaluations unless the CSE determined that. There was a discussion regarding the April 11th, 2013 resolution session which dealt with conversations with the school district attorney and other matters.

The next witness was Mr. A the school psychologist who has a MS and a BS and is NYS certified as a school psychologist, he has a role includes testing and re-evaluations, CSE meeting, takes minutes at many CSE meetings, and is familiar with the IDEA through in-services and has never met with the student except in the hallway and had no recollection of things discussed at the CSE meeting, he attended 3 CSE’s the June 1st, June 7th and August 1st and did not know about whether OO, PP, QQ was discussed or SS were discussed and was not that familiar with non-learning disabilities and did not know whether TT or XX was discussed. He was familiar with the prior written notice as it was used to review his recollection, he knew what an IEE was but did not know what surface dyslexia was, but did know dyscalculia. He was at the meeting of June 7th, 2013. He did know what pendency meant nor the purposes of the June 7th meeting he was at the June 21st meeting although he agreed with the recommendations he could not really articulate why other than other people thought that it would be good, but didn’t recall if anyone from BOCES participated and why 3x weekly for 180 minutes was the recommended ESY. He knew the program was in EA, he reviewed D23 a statement of regression, does not know if the CSE reviewed it, but extended school year is based on regression but did not know exactly what regressed. Reviewed D37 and D3 and did not know if the direct IEP was reviewed but believed so. He did not know if re-evaluations were discussed or even if one was needed. The witness reviewed P-RR the 3/1/11 district psychological report the 2014 re-evaluation a record review of older reports in lieu of the re-evaluation was reviewed D37 and did not know much about Read 180, reviewed P-XX which recommended special instruction for math or reading did not know much about, reviewed D3, Page 19 the PLEPS did not know much about the goals did not see the BIP attached to the IEP D3. He did not recall parent training being discussed at the CSE meeting and met the counselor and although agreed that the August 1st, 2013 IEP was a consent of the CSE recommended the services contained therein, but could not render an opinion if it was appropriate. The witness acknowledged that he has participated in thousands of CSE meetings. The district’s next witness was ES the speech/language pathologist with the district for 3 years, ASHA certified in NYS licensed with a BS and MS from F College. The student is in his second year with the witness, last year she provided group 1x group for 30 minutes, individually 1x weekly for 42 minutes, this year it is 1x individually for 42 minutes and group 1x weekly for 30 minutes, she was also an indirect consult with MW the social worker 1x weekly for 30 minutes for last year and this current school year. She had attended CSE meeting last year the June 7th, 2013, the June 21, 2013 and the August 1st, 2013. The June 7th, 2013 was an annual review which did not last long, there was break for the parents to review a draft IEP and the meeting was cut short when the father threw paper at JD the assistant director of special education. The June 21st, 2013 CSE dealt primarily with extended school year services, programming and originally she recommended not providing services over the summer, because there would be not be regression however JD recommended they continue speech/language pathology due to the student’s significant needs which was provided 2x weekly in group. The August 1st, 2013 CSE meeting dealt with progress reports, and there was a chart. She modified the goals to make it more consistent with the student’s needs; the prior goals were authored by the middle school speech/language pathologist. Regarding the progress monitoring D46 plusses are correct, minus are wrong, positive circle means correct with a prompt. Unfortunately there is no such thing as individual 42 minutes which she informed Mr. JD about the typo, but it was never changed. They came to the indirect consult to the social worker; the witness did not recall any specifics regarding the August 1st, 2013 meeting were they discussed progress. They did discuss homework; the student’s teachers thought it was important to be required to perform 30 minutes of homework to reinforce what was learned during the day. The witness felt the IEP from the August 1st, 2013 was appropriate.

The cross-examination of ES the student’s speech/language pathologist who was aware of the student’s disabilities T1817 and classifications and was not aware why it was changed from multiply to autism T1819, she authored the letter D12 the memo regarding the June 7th, 2013 CSE meeting T1821 the letter was the witness’s version of the events that occurred on June 7th, 2013 and in reference to the issues of the annual review. The witness reviewed RR which was the physiological report done by the district done on March 11th, 2012. The witness reviewed D46 progress monitoring, individual SLT is 42 minutes in group SLT 30 minutes even though the IEP said 42 for group T1828. The witness reviewed D43 progress monitoring notes DP2, P-KKK, P-XXXX, P-UUUU, IHO2, P-F, DP3, D46.,The witness reviewed P-NN the SLT session/Medicaid notes EEE T1862. The witness was unaware of connections T1865. The witness reviewed D77 a letter dated March 22nd, 2013 which was a letter to the parents of the student indicating that the district would be willing to pay for a connection summer program. The witness discussed regression and it was of her view that it was not regression but inconsistent T1868 skills with peaks and valley but there was not progress during the valleys T1870 D23. The witness reviewed D49, the draft IEP which references an annual review T1883, parents P a notice for the meeting indicating they were going to revise the existing IEP which seem to be inconsistent with an annual review for the upcoming school year. The witness reviewed and compared D3 with DP1, D49 and D3 T1885 considering the goals she wrote goal 6 on D3 T1888 and in particular the PLPs for the social development indicating that the student had made progress, but there was an issue of only 20% accuracy. The witness reviewed and discussed the August 1st, 2013 CSE meeting regarding social skills development the witness indicated that she agreed with the recommendations contained in D3. The witness reviewed PP T1892, Page 6 the speech language evaluation from the EH SC in particular page 6 were there was a primary diagnoses of mix respective and expressive language disorderT1893, pragmatics/written language with moderate degree of severity T1913. The witness dealt with pragmatic/written and express speech with volleying goal with a communication back and forth. The witness acknowledged based upon a confidential psychological evaluation RR that the student had overall low average range of cognitive ability. The witness authored a new goal even know there was minimal progress on the prior goal to work on generalization instead of just problem solving it was her testimony that the student had made progress reaching this goal 1:1 with the speech/language pathologist, but had difficulty generalizing setting and the time of the moment. The witness did not know what surface dyslexia was nor was she familiar with the read 180 program.

The next witness on 04/28/2014 was JP the student’s special education teacher who has been with the district since 2000 and before that was at a local district, she has experience as a special education teacher at BOCES Summers Program, is NYS certified special education and exceptional education master’s degree, she has provided services to the student in his 8th and 9th grade school years during the 2011/2012 and the 2012/2013 school years T1943. She is a resource room instructor with her being and acting as the primary service provider tracking goals, point person for general education support, she has 24 students under her program T1943 and she has 18 that she is the primary of T1944. The witness reviewed progress reports D51, D52, D53, D54, D59, D75 T1947 to T1972. The witness discussed a pre-conference meeting which she prefers to hold with the parents to discuss with the parents and obtain the parent’s input as part of the review process, normally she would discuss transition planning, progress and other parent inputs T1977-T1978, the mother declined T1979 to participate and it was of the witness’s belief that the conversations regarding the development and the status of the PLPs and other content areas would take place at the CSE meeting, but normally her process is to write the draft IEP over a period of time leading up to that, focusing on the goals of writing, reading, math, science and, social studies T1983. The witness reviewed D2 Page 13 and 14 the speech/language pathologist the clinic notes regarding the physical development regarding the student’s OT IEP of auditory skills, the PLP usually change as part of the review process, although they forgot to review the PLPs at the June meeting because of the difficulties encounter therein T1996. The witness indicated that on D49, the draft IEP creative writing represents notations that she entered and brings the notes to the meeting and any notes that she makes at the meeting she writes in purple T1997 regarding the June 21st, 2013 extended school year meeting she did not see significant regression T1998 but because of the significant needs at the suggestion of JD she recommended extended school year services to keep working on those skills and the statement of regression basically referenced that the student had inconsonant skills and needed to be reinforced. She was of the belief that SIRS program was appropriate because it had built into the program different components T1999 and there were a variety of different programs for the Summer program when all the intakes are taken BOCES staff places the students in different classrooms and provide appropriate services based upon her experience of having previously worked at the BOCES extended Summer school year, but not the SIRS program. She did not reference D3, Page 23 the 12 month program and D3 recommends and or references the Southside Program T2003 and the question was whether the prior written notice indicated change, because the recommended program was 3x80, plus related service speech/language group and individual but she agreed with the recommendation. Regarding the August 1st, 2013 CSE meeting there were in session for a long period of time, there were people there participating by phone and she was unsure if they had the draft IEP before them, but she reviewed D3, Page 20 but does not specifically recall if she worked on the goals on Page 19, she primarily work the writing, reading comprehension, helped with the 3rd one, 4th, but did not assist on the 5th and the 6th goals T2007. She was of the belief that homework is necessary to re-assist and re-enforce stuff learned in school and act as an assessment of the student’s progress to work alone, since in school there is a great deal of support T2011. She was in favor of her moving in the accommodation of only a 30 minute cap in said homework production primarily because there is so much directed guided instruction in the 12:1:1 T2013 also she is familiar with the Read 180 program T2021. The witness indicated that she was the student’s special education for 8th and 9th grade, and that she had attended 2 annual reviews in the 8th grade year but there was little or no progress with the reading level T2023, she reviewed exhibits D51, D53, D54, D75 and no graph paper was used T2044 nor math program that where provided to the parents. The witness indicated that the graph paper was kept in the student’s folder in the classroom, but they did not utilize same as seeing the program was on his laptop. The parents were provided with progress reports, page 1-3 of Exhibit 65, page 1, 3 and, 7 are out of Exhibits 67 all of Exhibit 70, she was unsure how the computer program was utilized for accessing information T2099, the witness reviewed D40 along with the travel folder T2091 that she takes to the meetings as most do the special education providers, she reviewed parent’s D and was unsure as to pendency, she reviewed D77 and did not realize that the district was willing to pay for connections for the 2013 Summer program, she was not familiar with the service program at BOCES for the Summer and felt the 12:1:1 special class would be appropriate since the Summer program they collected intakes and group them accordingly. AC testified that she is a special education teacher with a masters in reading specialist, NYS certified, special education with 12 years in the district as a resource room teacher. The student is assigned to her and is also his primary services provider. Previously she is assigned 10 years to the 10th grade with ELA program and is vaguely familiar with the regulations on autism and has approximately 25 students assigned to her case load. She has the student in a resource room class, 8th period. There are 5 students in resource room and there is another resource room class going on simultaneously with another 5 students. There is an aide, Ms. K. This is the first year AC has provided services to the student. She provides assistance with multiple choice strategies, reviews global notes, preps for tests and assists in homework. With algebra there is a lot of homework with worksheets and supplemental instruction with math she helps the student sometimes with his homework, there are classroom and resource room worksheets. With reading she is provides supplemental instruction for reading and writing currently the student does one paragraph of writing per week. The reading instruction is at the 6th grade reading level and writing is done on the laptop. Occasionally he would ask about art homework but it is only a clarification. She provides the student with assistance in reading and writing, additional homework. With physical education she assists with the homework which including vocabulary words looking up and typing up the definitions on his laptop. She is familiar with pendency and providing services pursuant to the student’s prior IEP. The student’s disabilities are dysgraphia CAPD, PDDNOS and Autistic Disorder and, believes the student to be LD classified. She is a special education teacher with an expertise in autism and provides transitional services in the resource room. She reviewed DP1 and she understands dyslexia is the switching around of letters and words, and describes dysgraphia as the switching around numbers out of sequence and believes that the non-verbal learning disability deals with social deficits. She is trained in the Read 180 which is not a phonics based reading program. The student chooses not to use the Dragon speech software.

The first witness on 05/09/2014 was JK the classroom aide for the 12:1:1 program with a teaching degree in special education but serves as a classroom aide and is certified special education 5-9. She currently is the classroom teacher aide for the 1:12:1 10th grade program and who taught his 6th grade special education teacher for 2 years. She also provides 9th period academic support for the student re-enforcing skills, organization, homework assignments in math, ELA and global and at times provides supplemental instruction. She was the classroom aide for the 2012/2013 1:12:1 as well as the 9th period. Her prior experience was a secretary for 12 years, she is familiar with the student and the classroom sizes range from 2-8. She is a classroom aide for the student’s math, global, ELA, providing adult services in art. She first met him in September 2012 which she provides tech support with the lap top, she copies and provides notes, provides assistance with fine motor skills, she checks for understanding and assists where needs, she assists with social skills and makes sure the student is on task and is very similar with the 2013/2014. She is familiar with the student’s disability including classified as autistic with deficits in fine motor, social skills, communication; he is very literal with a non-verbal learning disability he focuses on social deficits. The witness attended the June 7th, 2013 CSE meeting which was a review for the upcoming 2013/2014 IEP. She reviewed P-N and did not know which IEP was being reviewed based upon the notice. She prepared a statement of recollection of events surrounding the June 7th, 2013 CSE meeting. The witness was familiar with the Read 180 but she was not trained in it. There is multi-step instruction. She works with the student in math with fine motor skills using graph paper and documents tallies. The student’s deficits with math regard boarders and guidelines so the student writes numbers in line, he has difficulty with rulers and scissors. The student chooses to use lined paper and not the graph paper. The witness implements strategies in global using simpler steps based upon the student’s understanding she provides notes based upon the teacher’s current presentation. She is not sure at what reading level handwritten notes. Regarding art class she provides adult support and guidance and the art teacher circulates and offers help, she encourages the student to ask the teacher questions. He will sit at the desk and wait for Mr. F. The class was started in the 2nd semester regarding ELA they use visual blockers, reading strips and flash cards but not in math, but they do in global. They use a bubble sheet on occasion, in art class the student did not want to pull out his laptop for general education class. He was provided notes throughout the course of the day and they were reviewed during 9th period. The student uses flash cards and creates them on his laptop and prints them regarding global studies. Language skills the work load is modified, the notes are modified; the work sheets met the student’s needs. The student is on the 5th grade reading level, D3, Page 10 the student is on the 5th grade reading level so he progressed from a 5.5 to a 5.8 after several years in the reading program. Regarding the behavioral intervention plan, when there is a meltdown, she would try and remove the student from the situation and calm him down using deep breathing techniques and determine what caused the problem. The majority of the time she would escort the student to MW in house 1, he would become anxious, cry and put his head down on the verge of tears. The witness never completed VVV the fidelity checklist and she felt that the student could complete his homework independently with ELA, math, global and art. 9th period is supplemental to review academics. The homework assigned to the student can be completed independently without assistance depending on the assignment at times he could, and at times he could with assistance. She would normally add more details and helps explain. In math he struggled and ELA he lacks details but does it independently but with very basic language skills. In ELA there are articles and questions with worksheets and packets, typically homework is worksheets. In global they are working on castle learners with software programs preparing for the exams, they review flash cards also. In art there is an art project converting a picture off the internet to drawing in a contemporary setting, she was not sure about physical education although they work on vocabulary off the internet and defining same. With the OT goals she calculates and tallies and provides for the OT, and on cross it was indicated that she does not need any teaching certificates to be a classroom aide.

The 3rd witness on May 9, 2014 was AG the student’s special education global 10 teacher in a 12:1:1 setting which is primarily European History. Global 9 was China, Asia and other areas are was the 2nd part of the Regents course, but with the Regents exam being taken at the end of this current school year. She knows what pendency is and implemented the last agreed upon IEP. She drew the distinction between self-contained and blended; the primary difference being you have guided notes; there is more visual and repetition, providing great recall with multiple exposures. The 1:15 has a little less repetition. The witness was quizzed regarding the regents exam which format includes 50 multiple choice, some DBQ and some essays. The midterm administrated to the student is administered to all students the student did fairly well in multiple choice. She was aware of the student’s disabilities and attends conferences and in-services regarding autism. She has taught autistic students in the past and provides transitional support along with the resource room teacher. There was a meeting prior to the commencement of the 2013/2014 school year in which they reviewed the student’s IEP. The witness has implemented the due process pendency IEP. She knew about the student’s dyslexia and non-verbal learning disability. She reviewed XX the recommendations contained in PXX. She attends the team meetings. TO was there from UB, regarding assistance technology evaluation. The student does not use speech software in the classroom; she uses simple one step directions for all other students and uses visual blockers. When they test in the classroom they bubble for primary multiple choice. Classroom notes are taken by the aide off the blackboard, copied and presented to the student and modified for him. He does get preferential seating. The witness reviewed PPP- 6 the student has a moderate disability and his content is higher but is shorter than some of the other students. In the DBQ the student knows the information. The student is happy to discuss topics and social studies class because history is an area of self-interest. The student did retain much information from the previous 9th grade year; she does not implement the BIP as attached to PF. The witness indicated that the student struggles with tension in the academic setting. The student is anxious about not following the normal regiment and he feels set apart and different from the other students. Usually the student was guarded as he did not know the witness, JW the occupational consultant indicated that she should not discuss litigation with the student at the request of the parent and the district agreed based upon the behavioral update consult LLLL-2 dated June 2nd 2014, it should be noted that the pendency decision by the IHO was January 14th, 2014. The witness was not aware that Dr. M. observed the student. The witness felt that educational neglect was not pursuing things to the best interest of the student, the witness was a mandated reporter but did not report any abuse, although the witness felt there was an impediment to the student reaching his long term goals and a detailed analyses of the student’s reading showed minimal or negligible progress notwithstanding the implementation of the Read 180 program. The witness reviewed RR the school psychological educational evaluation from March 1st, 2011 again showing nominal or minimal progress in reading areas. The witness was not familiar with SS, TT, WW, YY and, ZZ. She did not know that the student did not achieve his goals from the previous year.

The parent’s next witness was Mr. C. The director of admissions from the G school, with over 20 years of experience at the G school which is the oldest special education school for dyslexic young men in the area. It is accredited; by associates of independent school and has residents and non-residents. He is familiar with the extended school year program which is four 1 hour academic classes in the morning and recreation from 2-5PM. Extended school year is for 8- 16 year old male and female in the summer program. The program is based upon a reconstructive language from the Orton the original creator/evaluator and precursor to the Orton Gillingham approach. The program is 5 days a week from 8:30AM to 12:45PM for academics and 2-5PM for recreation. The student was in 4 classes, the math 3 that was comparable to a pre-algebra class in the 8/9th grade as part of the admissions process they review the IEP which normally contains academic tests and, intellectual testing. The witness felt that the student was eligible for the program based upon his interview to address the areas because the student had been diagnosis reading disability with processing deficits. They do accept students on the autistic spectrum with a reading disability diagnosis, but they do not provide related services. The father next testified commencing with for historical value the student and parents had with the district going back to kindergarten. The student was placed in a 12:1:1, he related to history of a vast number of evaluations they had obtained to help the district create programming for their son, including the educational evaluations, psychologist evaluations, OT/PT. The student was diagnosed as PDDNOS by Dr. SH and Dr. SBM has been treating the student once a month ever since he was a classified of 1st and 2nd grade. They would attend team meetings and took an active role while the student was in elementary school and through middle school. The student attended Summer school at the S connections program and met Dr. M. there and they attempted to involve Dr. M. into the student’s program, he was contracted in to provide services up to a certain hourly amount. In 8th grade they contacted the Western New York F.A.C.E.S Advocates because homework was a problem. The student was overwhelmed and it was very stressful affecting the entire family with 10-15 minutes of homework and taking 2-3 hours. The student would have meltdowns and stress. The student was a lot more comfortable with ½ hour of homework per night. The parents started getting frustrated when they felt that the CSE and the district did not review the evaluations they obtained and provided to the district and the district staff. They became even more frustrated when the district failed to follow the recommendations. They felt that based upon the recommendations of Dr. K. early on that the student should be immersed in and with general education students as much as possible. The witness felt that the student could function in the classroom with the appropriate modifications. The witness acknowledged that the S connections program for the summer dealt primarily with social skills, it was a 5 week everyday program with no related services and no academics .They requested reimbursement for mileage. The witness indicated that the principal suggested they attach the RS encompass report as part of the IEP and they felt that they were going to incorporate the terms therein, but it was simply just referenced. The parent indicated that he never agreed to the aquatic science and 5 year program. It was simply what MS told them what they had to do. The witness recalled the events surrounding the June 7th, 2013 CSE meeting and that they initially asked the CSE to reschedule since they did not have an opportunity to review the draft IEP even though they were given the opportunity to review it after 45 minutes they were called back in by a district representative because JD did not want to reschedule. There was a double table a distance between the father and JD. The father indicated that he stood up and did not crumple a piece of paper to throw at him but threw the piece of paper with enough force to carry across the two tables and said paper was a mileage request that he had testified to that he had submitted 2 times prior. When Mr. JD had indicated that the meeting was over. JD went to the doorway and when the father was exiting, words were exchanged. The father testified that he told JD “he should look him in the eye” when there are discussing and should not be looking at the floor and that is when JD indicated that he should not invade his personal space. It should be noted that prior testimony was that JD was standing in the doorway creating a situation when both men being JD and the father being of similar stature could not exit through the doorway simultaneously. The father did not attend the June 21st, 2013 CSE meeting or did not feel comfortable with attending with the school attorney being there. The father did not know anything about the BOCES SIRS program and was in favor of the pendency placement. They had investigated the G school summer program for a couple months prior to the start of the program. The district did not provide transportation for any services at G program. HHH was reviewed by the parent who indicated that there was a request for mileage for the G program that was dropped off to the building and the people that he dropped it off to knew him because he had met them on prior occasions. The witness next talked about the lack of transitional services. He was told by MS that they would have to wait until the student was in 11th grade even though they wanted to start early, plan things out and see where the student was comfortable with. The father was not at the August 1st, 2013 CSE meeting they did not want to attend with district’s counsel there. The district knew that they could not attend on Thursdays due to a change in the wife’s work schedule. They stopped going to team meetings because district staff stopped listening and would not accept the recommendations of the private evaluator. The student’s attendance is excellent, the district in a letter placed the student in the art program which that the father did not feel that it was appropriate. The father did not think the student could complete the homework independently. He could do 10-15 minutes with something that he knew and then he would stress out, he liked reading even though he did not understand a lot of what he read. He could read for 2 hours. The witness indicated that the student had difficulties with cooking even burning toast, he could not select his own clothing, operate machines like the lawn mower, had difficulty applying for jobs because of lack of eye contact, he did not think that he could read well enough to do well on the drivers manual permit test. He participated in playing hockey with his friends. The father felt that the student would be a lot further ahead if the district would have listened to the recommendations from the private evaluator and feels that he has spent approximately $15, 000.00 for his education. The parents were never offered parent training and counseling, the student liked computer animations they wanted him to attend BOCES but he was too young. During cross-examination it was revealed that the parents never asked the district for an IEE earlier because they did not know about IEE’s, they worked with Dr. B. who did consult 1x per month since the student’s 6th grade year. The 2012 CSE reviewed the encompass evaluation but did not want to follow the recommendations, the bus aide dealt with more bullying issues, and it was not an issue this year but would be next year. They wanted the classification changed, they thought that he would get more appropriate services; they wanted modifications and thought the student could do well in a blended classroom with a personal aide. the father indicated that they toured the G school 2 or 3 times but did not bring it up at the June 7th, 2013 CSE meeting, they did not attend team meetings in the 2013/2014 except for 1 phone-in participation and the father was not impressed by the Read 180 program since it did not comply with Dr. RS evaluation and recommendations.

The next witness was the mother who testified that during a telephone conference where MS tried to persuade the parents into resolving all the issues without use of their advocates notwithstanding the fact that the district invites their legal counsel during the CSE meetings. The mother testimony followed to great extent to the father’s as to the amount of evaluations they prepared and submitted to the district and in an emotional fashion explained the frustration when the district failed to listen to the parent or even consider the evaluations. There was a situation in October 2013 he shred his shorts. They never talked about the Hearings with the student. Homework had been a problem starting in the 6th grade and going forward with meltdowns, stress and became easier in the 9th grade when there was a homework modification making it a lot better. At the team meeting she would try to bring up issues and would not be considered. She wanted to talk to Dr. M. and was told by MS that he was not participating because there was no need. The mother explained the bus aide situation that she did not think that the aide was necessary on a smaller bus, which was the afternoon bus. The mother was not impressed by the Read 180 program and the mother indicated the student’s difficulty with art the student’s difficulties and deficits would be consistent with his non-verbal learning disability. It should be noted that many of the student’s providers failed to properly explain what non-verbal learning disability was. After being accused of having educational neglect the mother blocked MS emails and never told anyone, the bus aide was supposed to be discreet, but the bus driver told the student it was for him and he was upset. The witness reviewed D77 a letter from LC to the parents indicating that the district was willing to pay for the S connections extended school year program for 2013, it should be noted that the 1 page document was not “CC” to the S school.

The witness reviewed D40, D3 and overall indicated that their frustration with the whole CSE process.

DECISION

Procedural Violation Denial of FAPE:

The parents allege that the district‘s use of a draft IEP is an indication of a predetermination by the CSE as to recommendations for special education services accommodations and modifications. The student’s special education teacher JP testified that she contacted the mother to schedule a pre-CSE meeting to gather the parents input into the present levels of performance and appropriate levels of services. Special education teacher indicated that creation of the draft IEP is a process and that the process commences with the old IEP that she types in purple ink for areas that need to be discussed at the upcoming CSE meeting and hand writes in green notes taken during the CSE meetings. During the CSE meetings she makes additional notations in the color green documenting input from the CSE attendees as to the CSE recommendations as to services, accommodations and modifications. During the CSE meeting of June 7th, 2013 the district utilized the benefit of a draft IEP as pursuant and consistent with the testimony of the special education teacher JP. Based upon meeting notice on committee on special education P-N the purpose of the meeting for June 7th, 2013 was to “review and, if appropriate, revise the IEP.” The district took the position that they were unable to review the 2012/2013 IEP since it was in litigation, notwithstanding that in planning for the 2013-14 IEP the student’s PLP’s and progress towards goals would be relevant. The meeting notice does not specify which IEP is to be revised, does not specific that it is the draft IEP to be revised and as a result if it does not identify a draft it references an existing IEP, an existing IEP would be the 2012/2013 IEP. That is the plain reading of the CSE meeting notice. The assistant director of special education and chair for the CSE meeting JD explained that people in the know, know that it is an annual review at the end of the school year and people familiar with the CSE process special education would know this. I find that if a meeting notice depends on the knowledge of the person receiving the notice than it is an ineffective notice, I also find that IEP to be “revised” is the existing IEP, I also find that the position of JD refusing to review 2012/2013 IEP is contrary to the process described by the special education teacher namely that she commences a creation of the draft IEP based upon the existing IEP.

Furthermore by failing to review the 2012/2013 IEP it would be difficult to measure progress if it is not compared to the annual measurable goals. I find that position is both unreasonable, untenable, and creates an environment where the perception of the parents is that the district policies and procedures are circumspect. I further find that these are serious cumulative procedural violations and by themselves are procedural violations FAPE and a denial of FAPE. In addition to prelude discussions at the CSE meeting of an IEP on the current school year that the CSE being held based upon the fact that litigation is pending ensures the continuation of the litigation and prevents the CSE from operating as intended to create an individualized education plan for a student with disabilities. It also highlights that Mr. JD views the district and the CSE as one and the same.

The CSE meeting of June 21st, 2013 was noticed by means of P-P a meeting notice June 21, 2013 the stated purpose of the meeting is the same language as contained in P-O the meeting notice for the June 7th, 2013 meeting. The district witnesses all indicated that the purpose of the meeting was to review the student’s summer programming. Nowhere in the stated purpose of the meeting for June 21st, 2013 P-P the meeting notice for the CSE dated 6/14/2013 indicate that the purpose of the June 21st, 2013 meeting was to review the extended school year program for the student. The witnesses all stated that the sole purpose of the CSE meeting was to review the extended school year program. The meeting on June 7th, 2013 concluded with JD the CSE chair and the assistant director informing the parents that the meeting would continue in their absences. As a result the parents were not informed by the district that the purpose of the June 21st, 2013 CSE meeting was solely to discuss the 2013 extended school year program. The prior written notice actively reflects the actions proposed or refused by the CSE. The parents point to a letter from the director of special education AC indicating that the district on March 22nd, 2013 indicated that they were willing to pay for the student’s participation in the K program for the upcoming 2013 school year. The assistant director JD explained the application processes for the SK program he communicated with Dr. M. that the student may be attending and JD indicated that his understanding was that the program would send the application to the family directly. Dr. M. testified that he was the director of the S connections summer program and that a letter routinely goes out in early February or about that time, a letter dated sometime in February he was unsure when exactly it is mailed out. The previously participating individuals and families connected with the program and who previously participated in the program. It is unclear if this is the application that JD indicated from his testimony that was sent to the parents and that they did not to respond. When there was no direct communication from JD to the parents following up on the S connection, the notice does not indicate that this is the purpose of the extended school year but also that the position taken by the advocates that pendency had been triggered and that it was improper and for the CSE to make that recommendation to send the student to BOCES SIRS. Nonetheless the parents did make application for the G Summer program at the last minute notifying the district at the last minute, subsequently enrolled the student in the G Summer program. This raises issues with both pendency and Burlington reimbursement which would be dealt with in the substantive portion of this decision regarding issues of FAPE and not as much as the procedural issues herein, nonetheless the failure of the CSE meeting notice indicating the sole purpose of the CSE meeting is a procedural violation resulting in a denial of FAPE in the extended summer program for the 2013 year.

PROCEDRUAL DENIAL OF FAPE for AUGUST 1st, 2013 CSE MEETING

There was testimony regarding the parents being provided with the IEP following the August 9th, 2013 CSE meeting including the 2013 summer program. The analysis of the August 1st, 2013 CSE meeting commences with the review of the process involved in scheduling the CSE meeting with the district sending out notices asking for participation and 3 available dates, said dates were not on the Friday’s as had been the past practice and the request of the parents. The district sent out a letter suggesting 3 possible dates, the parent did not respond until just before the 3rd date. The CSE chair and the assistant director JD were unwilling to re-schedule the CSE meeting after August 6th in light of the fact that he felt compelled to have the annual review within one year of the prior annual review which created a deadline for which he could not adjourn or reschedule the CSE meeting. The meeting took place without the participation of the parent and with the prior CSE meetings the assistant director attempted to contact the parent by telephone without success. It is also interesting to note that the district was notified by the parent and the parent advocates that the parents were unable to attend that date, however JD the assistant director weighed holding the IEP annual review within the 12 months claimed to be the allotted time frame and obtaining the parents participation, and opted for holding the CSE meeting on 8/1/2013 even though it was a reconvened annual review meeting within the appropriate time frames at the expense of obtaining parental participation. Obtaining parental participation in the CSE would have been more important in the developing and appropriate IEP and then delaying the completion of the annual review for a short period of time. Another factor is that the parent’s advocates requested that the school district attorney and the CSE chair, assistant director JD no longer participate in the student’s CSE meeting due to the hostilities arising from the June 7th, 2013 CSE meeting and continuing to this very day. The district declined both requests and in an obvious policy decision which further contributed to the animosity between the parties heightens the animosity between the parties and has lead to a deep freeze of the relations between the district and the parents.

I find for the above reasons that the district failed to provide FAPE for the cumulative procedural violations in creating the IEP at the 6/27/2013 and 8/1/2014 CSE meetings.

THE EXTENDED SCHOOL YEAR AND THE IEP OF THE JUNE 21, 2103 CSE MEETING

The June 21, 2013 CSE meeting made a recommendation for the 2013 summer program as part of the IEP for the 2013/2014

In SRO No. 95-66 the SRO stated:

“On April 21, 1993, the CSE met with petitioner to discuss the child's educational program and placement for the seventh grade, during the 1993-94 school year. The CSE indicated its preference for placement of the child in a self-contained special education class with a 12:1+1 child to adult ratio, but deferred making a specific recommendation until petitioner could visit two 12:1+1 classes, both of which were in respondent's middle school . Although petitioner raised the issue of whether the child should be placed in a private school, the CSE concluded that such a placement would not be the least restrictive environment for the child. Petitioner also requested that an extended school day program be provided to the child to assist him in developing his organizational skills and that respondent provide an extended school year program, i.e., instruction during the summer of 1993. The CSE did not recommend either an extended school day or extended school year for the child.”

The CSE meet on June 21st, 2013 to discuss the extended school year program for the 2013 Summer school year as part of the 2013/2014 IEP. The district had stated that it would be willing to fund the S connections summer program for the 2013 summer program as evidence by D77 a letter a from the director of special education services, LC. The CSE met on June 21st, 2013 without the parents attending and made a recommendation that the S connections summer program was not appropriate because it lacked a strong academic base. The district’s CSE on June 21st, 2013 recommended that the student attend the BOCES SIRS program which stands for Specialized Instruction Related Services. D-3 the IEP for the 2013/2014 school year recommended the 2013 ESY The SIRS program did not address the student’s deficits in OT since no OT services were recommended. Speech and Language were recommended 2 x weekly x 30 mins. To address pragmatic speech but did not provide separate counseling. Although the speech language component was to address the pragmatic language needs and counseling needs would be filled by the speech and language services. There was no representative from the BOCES programming SIRS or otherwise in attendance at the CSE meeting of June 21st, 2013 either in person or by telephone. The testimony throughout the course of the Hearing provided little information as to the details of the SIRS BOCES program. The special education teacher had taught at a BOCES Summer program before and discussed that student assignments are provided at the time that the application and the intake documents are submitted and then assignments are made prior to the commencement of instruction. The witnesses from the district lacked any specific details as to how the student’s social/emotional goals would be met or what precautions would be taken in terms of crisis management and crisis intervention should there be a meltdown. The program recommended would provide an opportunity for related services in the form of speech/language based upon the student’s substantial need and not so much as to a substantial regression. In fact the extended school year services for speech /language was not based upon substantial regression but substantial need. The OT therapist was not concerned with regression but believed a refresher session at the beginning of the school year would catch the student up to any lost skills regarding utilizing assistive technology pursuant to his IEP. Dr. M. testified as a clinical psychologist from S and also as the Director of S’s connection summer program for which the district had agreed to pay. He indicated that the connections program is heavily into social/emotional development and behaviors with specific skills for development and reinforcement of those skills unbeknownst to the campers in a camp like setting carefully orchestrated to reinforce those skills. The program did lack academic components, the connections program was an every day, 5 days a week summer program. So in comparing the appropriateness of the program being offered by the district’s CSE it is shorter in length as compared to the S program. The district had previously placed the student in the summer in the Sun program and an elementary program for which the student aged out as he graduated from 8th grade and moved to 9th grade and as a result it was not longer an option. Although it is still a recommendation as extended school year program on the student’s IEP, another clerical error.

There is little information in the record concerning the summer in the Sun program in order to do a pendency evaluation nor does the Impartial Hearing Officer’s pendency determination include an extended school year program. Except to say that the summer in the Sun program was 5 days a week for 330 minutes per week or 66 minutes per day nor does it appear that any related services were included in the extended school year programming. Reviewing pg. 14 and 15 of DP1 related services commenced September 6th, 2012 and ended

June 20th, 2013. One of the issues surrounding the extended school year program was the prior written notice P-Q which contains as its subject “Program Review” the described action is a review of the student’s current school year to determine his eligibility for ESY which is P-Q that is date June 21st, 2013 that was sent to a PO Box which is the address listed on DP1 the pendency IEP. There was testimony that the parents sought to place the student at the G program for the extended school year services having raised issues concerning progress. The parents by means of the letter dated June 29th, 2013 which indicated that it was sent by fax which is a Saturday proceeding the Monday July 1st, 2013 summer school year program notifying the district that the parents were placing the student in the G Summer program starting July 1st through August 3rd, 2013 a Summer program at public expense seeking reimbursement for tuition, supplies and travel expenses. As the SRO stated in 06-004

“A purpose behind the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C.

§§ 1400 - 1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. §

1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v.

Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]). In Burlington the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along.”

The extended school year services were recommended in large part because of the student’s substantial needs not regression. Those substantial need included speech and language but not OT or counseling separate from the pragmatic provided by the speech language therapists. The irony is that the student is demonstrating substantial need in reading after the district imposes an across the board read 180 program what does not meet the criteria for Dr. S report which the district claims that it adopted as its own triennial report. It is equally ironic that the student was experiencing substantial needs in math after utilizing a math program that the evaluator subsequently determined to be inappropriate. The student also had substantial needs. It should be noted that the G school summer program did not provide access to related services. The director was of the opinion that the program was appropriate for the student.

The comparison of all three programs bears a striking similarity. G provided no related services but does instruct children on Autistic spectrum with a diagnosis of a reading disordered and provides math instruction for students with reading deficits. The SIRS provided instruction in reading, math and pragmatic speech. G school provided reading instruction and math instruction in small class size setting, with a max less than the class size of SIRS. S connections provides no academic but all social pragmatic social interactions.

As part of the three prong Burlington test I find that the district’s ESY program did not provide FAPE by failing to address the student’s most pressing needs to facilitate the student’s transition in a high school setting and address the student’s transition post-secondary needs.

I find that the parental placement appropriately addressed the student most pressing needs social interaction during the recreational phase of the program and the student’s language needs.

Equities are the third prong. Statutorily the 10 day notice is cited as a failure to provide the district an opportunity to convene a CSE to amend the IEP to address the concerns raised in the parent’s letter. The failure to comply with the ten days notice has been found to result in equities not favoring the parents. The parents notice can be calculated in terms of hours and not days. The equities in this matter are extremely difficult to ascertain. I do not condone the use of threats against teachers, staff, consultants and related service providers. None the less the district’s director of special education agreed to compensate the parents. This arose out of a Non – CSE setting. The district did not ensure that the paper work component was done and instead relied upon a process which is inconsistent with the protocol described by Dr. M. The district did agree to pay for the S connection ESY program. The district’s CSE abandoned pendency and rejected the indication that the district would compensate the parents for the S connections program. There is no explanation in the record why D77 was issued. An indication could be that D77 was an offer to pay of the summit as pendency and that for as a result of a paper work /snafu the student was not in the connection program. Nonetheless the offer to pay effected the parents and the parents relied on same based upon the frequency thatD77 was raised during the course on the hearing. As a result I find that the equities favor the parent and direct the district to compensate the parents within 10 days of proof of payment by the parent for G school tuition and mileage

The CSE meeting on August 1st, 2013 IEP Denied the student FAPE The district’s IEP from the August 1st, 2013 CSE meeting recommended a 1:12:1 self-contained special class for english, math, social studies, science which was later described as a typo and was not being provided due to the student being on a 5 year track which the parents disputed. The 12:1:1 class was for 42 minutes 5 days per week in English, math, social studies and included science as a clerical error. The CSE also recommended resource room 4 days weekly for 42 minutes, 1 x weekly for 12 min, counseling 1x per week for 30 minutes, speech language therapy group 1x per 6 day cycle for 30 minutes, speech/language therapy individually 1x per 6 day cycle for 30 minutes, plus the CSE recommended supplementary aides and services, program modifications, accommodations including adult assistance with fine motor activities, class notes supplemented, provide visual blockers, prompts to recheck work, calculator for math, visual daily scheduling class schedule for digital agenda, multi-step directions broken down, preferential seating, student not penalized for spelling errors, assisted technology included laptop, scanner to transfer copy school materials, re-orientation in use of assistive technology, speech output software, recognition software, word protection software, math tools software organizational tools and highlighter, outlook planner. The student was also provided with supports in the forms of crisis intervention as needed, speech counseling consult 2x 30 minutes per month, behavioral consult provided by Dr. M. autism behavioral consult 1x 40 minutes per quarter, quarterly meetings, OT consult 2x 60 minutes for the first quarter, OT monitor with the student for the first 2 weeks to re-acclimate to technology. I find the student was not provided with an adjustable seat, that the student declined the use of speech out-put software, speech recognition software, word predication software, even though same was provided by the district. The computer laptop was provided with assistive technology software, I also find that the access to a scanner was not provided nor was materials scanned into the student’s laptop. I find that other items that were provided by the district including fine motor assistance provided by the classroom aide, class notes provided visual blockers, prompts to check work completion, calculator for math activities, and visual daily schedule for digital agenda, multi-step directions broken down, preferential seating and not penalized for spelling errors. The 5 year track excluding science was incorporated in this Hearing Officer’s pendency determination; however it is unclear whether and when this determination was made based on the testimony of M.S. It was determined prior to her involvement in the student being on her case load and relies upon the parents being provided with a draft schedule that did not include science. The finalization of said schedule was accomplished at the CSE meeting. However it is unclear whether the parents consented or were aware of said 5 year track. However I find that based upon the testimony of MS that the 5 year track was necessary to accommodate the student’s schedule programming and related services. There was extensive testimony from the content area teachers the student’s current math/algebra teacher testified that even though the student was doing well, he struggled and that the 2 year regent course was inappropriate for the student based upon the common core standards. The social studies/global 10th grade teacher testified that the student was top in his class in the 1:12:1 global 10 class; however she was concerned about the student not progressing at an expected rate, blaming the tension that the parents created during this protracted litigation against the district. The global 10 instructor then commented that the student was appropriate for the global 10 Regents course in a 1:12:1 format although intimated that during her testimony that the student might be ready for the 1:15 class. The student’s 1:12:1 English teacher indicated that the student’s progress at various components of the program, the student’s English teacher was also responsible for the Read 180 computer software program which was provided to all special education students in the district. A review of the student’s grade equivalent scores indicates the student has not progressed in his reading scores. It should also be noted that the English 1:12:1 instructor indicated that the Read 180 program does not follow the recommendations of RS and the IEE evaluation that was purported to be adopted by the district as part of its triennial evaluations. It should be also noted that the math tools program which contained a different name was determined to be inappropriate and discontinued because it was not beneficial by TO, the assisted technology evaluator who performed a classroom observation during the 2013/2014 school year. The student’s 2013/2014 resource room instructor provided the student with all the appropriate supports and accommodations and required by student’s IEP. The student’s counseling related services were provided by MW and as indicated by Dr. M. the autistic behavioral consult, MS “gets it” the student’s counseling provided 1x weekly for 30 minutes, in addition to the crisis intervention component of the IEP meets the student’s needs and I so find. The speech language therapist worked primarily toward the student’s pragmatic deficits although there was some confusion over the length of the therapy sessions a clerical error was pointed out to the assistant director of special education JD who appeared not to correct said clerical error. The student’s lack of progress, as pointed out by the student’s global 10 instructor, I find was mainly caused by the ineffective reading instruction program which the district implemented across the board failing to account for the student’s individual needs as identified by RS. In parent’s XX for which the district’s CSE on August 1st, 2013 adopted but curiously enough rejected the major components of RS’s recommendations. That paradox is inconsistent with providing the student FAPE and I find that as a result that the district’s IEP from the August 1st, 2013 CSE meeting failed to provide the student FAPE. I also find the math program supplemented by the math tools software was not appropriate to meet the student’s needs and as a result the math component including the supplementary services denied the student FAPE. I also find that the Read 180 program was inappropriate and was not specialized reading program with a phonics based component as recommended by RS in XX.

IEE HR #3 83592

The parents had sought an independent education evaluation based upon failure of the district to properly and thoroughly evaluate the student and for failure to evaluate the student within the triennial period as required. The district contends that at its August 1st, 2013 CSE meeting which the parents did not attend the district’s CSE adopted parent’s XX an educational evaluation but as not a psycho-education evaluation from RS, as its own independent evaluation. The CSE process was explained by JP the student’s special education teacher as follows: in March of 2013 she began preparing for the annual review; in June of 2013 she prepared draft IEPs in green lined areas of discussion, areas for review. Prior to the CSE she invites the parents for a pre-CSE meeting, a planning meeting which she did but the parents did not attend. The CSE meeting on June 7th, 2013 convened abruptly ended without rendering any recommendations. D49 is the initial draft IEP prepared by the special education teacher with green line ink notations. By reviewing the projected day of the annual review as June 6, 2014 it would indicate that the changes were made in anticipation of the June 7th, 2013 CSE meeting. As indicated also on the date of the IEP to be developed as June 7th, 2013 it does indicated that the projected date of the 3 year evaluation that is OPCSD March 30th, 2011 as RS’s report dated March 30th, 2012. The parents contend that JJJJ is the draft IEP for the June 7th, 2013 meeting; however it contains notations as to the projected date of the annual review of July 30th, 2014 which indicates that it was prepared in the anticipation of the August 1st, 2013 meeting. Said notations on said projected date of the evaluation indicates that the OPCSD March 30th, 2011 is crossed out and the RS March 30th, 2012 is crossed out in its place the date of March 30th, 2015 is inserted. The district meeting minute notes make no reference to the adopting the IEE RS report as the district’s triennial, nor did the witnesses have a recollection of said discussion as part of the CSE process. It should also be noted that JD is the only witness, the CSE chair who surmises that it may have changed at the 5/17/2012 meeting but he was not there and does not recall it being discussed during the 8/1/2013 CSE The absences of any discussions regarding the CSE discussing the triennial evaluation or adopting the IEE as a districts evaluation is troubling, it is not a common place occurrence to adopt a parent’s IEE as a district evaluation. In the review of the draft IEP with purple highlighting and green hand writings said district CSE of August 1st, 2013 discussions does not support the surmises of JD since the draft IEP utilized by the SET JP does not reflect the changes that JD surmised to have occurred in May of 2012. I find that the district failed to meet its burden that the IEE of RS was adopted as the district’s triennial three year reevaluation. The SRO Stated

"In a letter dated August 18, 2005, the CSE advised respondent of its intention to conduct a three-year reevaluation of the student in compliance with the Regulations of the Commissioner of Education (8 NYCRR 200.4[b][4]; Dist. Ex. 26 at pp. 1-4). On

September 26, 2005,respondent provided the CSE with written consent to evaluate the student (Dist. Ex. 25). Petitioner began conducting the evaluations of the student during the 2005-06 school year (Tr. p.56; Dist. Exs. 22; 23; 24).

A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines 200.4 40 that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

5) Determination of needed evaluation data.

(i) As a part of an initial evaluation, if appropriate, and as part of any reevaluation in accordance with section 200.4(b)(4) of this Part, a group that includes the committee on special education, and other qualified professionals, as appropriate, shall review existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related services providers. The group may conduct its review without a meeting.

(ii) On the basis of that review, and input from the student’s parents, the committee on special education and other qualified professionals, as appropriate, shall identify what additional data, if any, are needed to determine:

(a) whether the student has a disability as defined in section 200.1(mm) or (zz) of this Part, or, in the case of a reevaluation of a student, whether the student continues to have such a disability;

(b) the present levels of academic achievement and related developmental needs of the student; including the four areas listed in section 200.1(ww)(3)(i) of this Part; 41 200.4

(c) whether the student needs special education, or, in the case of a reevaluation of a student, whether the student continues to need special education; and

(d) whether any additions or modifications to the special education services are needed to enable the student to meet the measurable annual goals set out in the IEP of the student and to participate, as appropriate, in the general curriculum. (iii) The school district shall administer tests and other evaluation materials as may be needed to produce the data identified under subparagraph (ii) of the section. (iv) If additional data are not needed, the school district must notify the parents of that determination and the reasons for it and of the right of the parents to request an assessment to determine whether, for purposes of services under this Part, the student continues to be a student with a disability and to determine the student’s educational needs. The school district is not required to conduct the assessment unless requested to do so by the student’s parents.” In discussing 8 NYCRR 200.4[b][4];the SRO in 08-001 stated the following and I so order

“a comprehensive psychoeducational evaluation of the student, including, but not limited to an assessment of the student's cognitive functioning; social emotional functioning; reading, writing, and math skills; and his need for assistive technology and OT services”

FINDINGS

1. I find that if a meeting notice depends on the knowledge of the person receiving the notice than it is an ineffective notice, I also find that IEP to be “revised” is the existing IEP, I also find that the position of JD refusing to review 2012/2013 IEP is contrary to the process described by the special education teacher namely that she commences a creation of the draft IEP based upon the existing IEP. 2. Furthermore by failing to review the 2012/2013 IEP it would be difficult to measure progress if it is not compared to the annual measurable goals. I find that position is both unreasonable, untenable, and creates an environment where the perception of the parents is that the district policies and procedures are circumspect. I further find that these are serious cumulative procedural violations and by themselves are procedural violations

FAPE and a denial of FAPE. 3. I find for the above reasons that the district failed to provide FAPE for the cumulative procedural violations in creating the IEP at the 6/27/2013 and 8/1/2014 CSE meetings. 4. As part of the three prong Burlington test, I find that the district’s ESY program did not provide FAPE by failing to address the student’s most pressing needs to facilitate the student’s transition in a high school setting and address the student’s transition post-secondary needs. 5. I find that the parental placement appropriately addressed the student most pressing needs social interaction during the recreational phase of the program and the student’s language needs. 6. As a result I find that the equities favor the parent and direct the district to compensate the parents within 10 days of proof of payment by the parent for G school tuition and mileage 7. I find the student was not provided with an adjustable seat, that the student declined the use of speech out-put software, speech recognition software, word predication software, even though same was provided by the district. 8. The computer laptop was provided with assistive technology software, I also find that the access to a scanner was not provided nor was materials scanned into the student’s laptop. 9. I find that other items that were provided by the district including fine motor assistance provided by the classroom aide, class notes provided visual blockers, prompts to check work completion, calculator for math activities, visual daily schedule for digital agenda, multi-step directions broken down, preferential seating and not penalized for spelling errors. 10. However I find that based upon the testimony of MS that the 5 year track was necessary to accommodate the student’s schedule programming and related services 11. I find was mainly caused by the ineffective reading instruction program which the district implemented across the board failing to account for the student’s individual needs as identified by RS. In parent’s XX for which the district’s CSE on August 1st, 2013 adopted but curiously enough rejected the major components of RS’s recommendations. , I find was mainly caused by the ineffective reading instruction program which the district implemented across the board failing to account for the student’s individual needs as identified by RS. In parent’s XX for which the district’s CSE on August 1st, 2013 adopted but curiously enough rejected the major components of RS’s recommendations. 12. That paradox is inconsistent with providing the student FAPE and I find that as a result that the district’s IEP from the August 1st, 2013 CSE meeting failed to provide the student

FAPE.

13. I also find the math program supplemented by the math tools software was not appropriate to meet the student’s needs and as a result the math component including the supplementary services denied the student FAPE. 14. I also find that the Read 180 program was inappropriate and was not specialized reading program with a phonics based component as recommended by RS in XX.

15. I find that the district failed to meet its burden that the IEE of RS was adopted as the district’s triennial three year reevaluation.

ORDERED

It is hereby ORDERD, the district is to compensate the parents within 10 days of proof of payment by the parent for G school tuition and mileage for the2013 ESY; and it further;

ORDERED, the district conduct a comprehensive psychoeducational evaluation of the student, including, but not limited to an assessment of the student's cognitive functioning; social emotional functioning; reading, writing, and math skills; and his need for assistive technology and OT services.

PLEASE TAKE NOTICE:

Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:

“ 279. (2)(b).13 Notice of intention to seek review.

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

Notice:

(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of

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

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

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

_______________________________

Dated: May 20, 2014

PAUL T. BUMBALO, ESQ.

IMPARTIAL HEARING OFFICER