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 Of the0 Parent of a a Student with a Disability CORRECTED Against the WXXXXX CSD DECISION

CASE ID NO

___________________________________

PROCEDURAL POSTURE

This Hearing Officer was appointed to preside over this matter on September 30th, 2013 a scheduling order was issued and this matter on October 2nd, 2013 that a preliminary conference was held on November 11th, 2013 in which Hearing dates were selected for December 18th, 2013, January 22nd, 2014, January 29th, 2014 and, January 30th, 2014. There arose a substantial issue pertaining to the scope of subpoenas. A Hearing date was converted to a pre-hearing conference to hear oral arguments on the issues of Subpoena Duces Tecum and the scope of said subpoenas. An extension was granted as part of the pre-hearing conference to account for the availability of witness resulting in a compliance date of January 10th, 2014 a subsequent extension was requested and granted on December 18th, 2013 as part of the hearing converted to a pre-hearing conference to deal with the scope of the subpoenas, exhibits, and the 5 day disclosure resulted in a new compliance date of February 9th, 2014. The hearing dates of January 22 and 23, 2014 were canceled and the hearing went forward on January 29th and January 30th, 2014 and an additional extension was granted based upon the availability of witnesses and an additional extension was granted setting the compliance date to March 9, 2014 based upon the availability of witnesses and additional extension was granted due to the availability of witnesses extending said compliance date to May 11th, 2014 and a final extension was granted to provide for the opportunity to obtain transcripts and submit post-hearing briefs and that extension resulted in a record close date of June 6th, 2014 and a compliance date of June 20th. In all there were hearing conducted on January 29th, January 30th, March 10th, March 20th, March 21st and, April 24th being the last hearing date. The parties endeavored to enter into evidence joint exhibits and said exhibits were entered into evidence as Joint exhibits 1-298, parents introduced to separate exhibits parent’s “A” and “B” and IHO exhibits included including IHO 1 which was the district’s response to the Due Process Hearing Request, IHO 2 is the index of joint exhibits prepared by the parties and supplemented by notes to deal with the accommodations and joint filing of exhibits. In addition Parent’s Exhibits “A” and “B” were introduced into exhibits, District Exhibit 1 and an additional IHO 3 which was the compilations of extensions grated in this matter.

SUMMARY OF FACTS

The first witness was she is the assistant superintendent of the district in charge of curriculum and instruction T28, and her duties include overseeing impartial hearings, curriculum K-12. She is the 504 coordinator, and has been in the position for 3 years T29, prior to that she was assistant principle in the high school and then middle school principle for 5 years. She is certified as a classroom teacher. She has a MS in special education and a BS in elementary education. She is certified by New York State Department of Education as in elementary education, building administrator and district administrator T30. She is familiar with the student as an assistant principle in the middle school, and when he started he was a typical 7th grader T31. In late September or early October there appeared to be reports by classroom teacher of some issues of immaturity T31 with reports from the team which include core subject area teachers and guidance counselors . The team meets 1x daily. The students are assigned to a team based on a random computer draw with the exception of special education classified students who are hand selected T34 as inclusion students that are assigned to an inclusion team. It was random and happenstance that the student was assigned as a general education student to the red team, which was the inclusion team ELA and Math T33. The parents were contacted by the witness when the issues arose T34. The witness reviewed J72 the progress reports which were designed to provide the parents with weekly progress reports so they could institute disciplinary consequences and rewards on a weekly basis to the student T36. Initially there were some problems with the transfer of some information, but procedures were implemented where the guidance counselor was responsible for sending them out on Friday T37 even if they did not have all the information from all the classroom teachers. The guidance counselor would cc the witness who would follow-up T45 to provide information as that was not communicated to the parent. There were some disputes as to the dates on some of the progress reports; however the witness indicated that she had seen these as she was cc’d as part of the follow-up procedure T46. The witness went on to indicate that there were problems on a daily basis that the student being reluctant to work and would have work avoidance, and the student not complying, ongoing difficulties with the math class, refused to pick up his pencil T49, classroom teacher and special education teacher became very frustrated T49. The witness next reviewed J61 and the 504 plan for 201-2011 T52 that the witness attended because behaviors were increasing in the classroom and a lack of homework T53, there was communication with the parents. There was a 504 meeting the student was struggling and the student was classified as 504 student’s eligible based upon diagnosis of T54 which was based upon an oral report from the parents. The diagnosis which was to be documented by a written report which the witness does not recall seeing T54. The witness reviewed J18 and J19 the 2008 ELA, New York State Assessment which the student scored 650 T57 which was borderline level 3. For the 2008 math New York State Assessment the student scored 699 which is a level 3 as well as J22 which is the 2008-2009 ELA in which the student scored 666 T58 which is a level 3, on the 2009-2010 New York State assessment the student scored a 659 which was a level 2 T53. There was testimony that this New York State Department of Education had changed and made the test more rigorous by raising the threshold for each level. For example J3, the student scored 659 which is a level 2, level 3 cutoff was a 662 T60. The witness opined the scaled scores have been fairly consistent T61 and decreased which pre-dated the 504 plan. The witness also reviewed J84 T62 which was the ELA New York Sate Assessment for 2010-2011 in which the student scored a 641 which is a level 1; the cutoff being a 642 for a level 2. It was a more rigorous test with essay and reading passages. The student’s scaled score was higher but resulted in a lower level T61. Also there was a report that the student was refusing to take some portions of the assessment T65.

On cross-examination it was revealed the student’s behaviors started in 7th grade T69that on times the student was “kicked out” of class, sent to the principal’s office T69 and would return to class at the beginning of the next period, he was punished with an after school detention T69. The student was receiving support from a special education teacher in the co-taught format T71. She did not refer the student to the CSE even though there had been an increase in the student’s behavioral issues T72; because the student was able to do his work when he participated in class. She did not know if the FBA was not requested or performed even though the witness did not know the triggers for the student’s behaviors T74. The classroom teacher implemented behavior techniques as part of the classroom management plan, she was not quite sure what the strategies where because they varied from teacher to teacher, class to class T75. On occasion a TA would be closer in physical proximity to settle the student down and move his seat. Even though the student’s behaviors were on a daily basis T76 there was no FBA done to determine what the task refusal triggers were. The witness also reviewed J61, the December 7, 2010 that was reviewed by the 504 committee which was an abbreviated one paragraph format, a psycho-educated evaluation. The witness reviewed J46 the actual evaluation reporting the student scored a 26 above the 22 threshold for further testing dated 3/24/10 was reported with a specific date of evaluation. The witness was not sure the SL report indicating a CELF 4 score of the average range was discussed. The report from DK diagnosing the student with was referenced in the 504 plan T90. The witness was not in possession of the report and did not recall ever seeing the report even though the parents promised to provide same. In reviewing J61 which was the 504 accommodation plan for the 2010-2011 school year dated December 7, 2010. The witness was quizzed regarding what accommodations and modifications in J61 the 504 plan dealt with the student’s the witness indicated word processing, word bank, graphic organizers, extended time, test mods T92, word processor, language directions simplified, writing and reading labs T92. The student was placed in the reading lab which provides the tools and compensatory skills to adapt to the student’s deficits T94. The student was making progress per the reading teacher T97. It was based upon the report card grades at 10 weeks and 5 week reports T99. The witness opined that the standardized T100 New York State assessments does not accurately reflect the student’s progress and are not reliable T105, because of the change in standards making the test more rigorous, but report cards are reliable T101. The student made academic progress but not with his behaviors T107 which would decrease if there was a bad week and in a bad week there was inconsistent at the best. There was a decrease in behaviors but worse in the 7th grade T106, some behaviors were ameliorated by the 504 plan which would address the academics but not did address the behaviors T106. In the 2nd half of the 2010-2011 the 504 plan did not have any impact in the behaviors, did not recommend an FBA and the witness believed that all the behaviors were related to the and denied evaluations were necessary to see sources of the behaviors T107. The witness did not have a good recall of the CSE meeting T108, resulting in an IEP being generated the New York State assessments there were not significant decrease T108, but some decrease and there was some question regarding the student’s effort in taking T109 the 7th grade ELA test. The student consistently showed behaviors, there was also homework lab to address the student’s deficits which he used inconsistently T110. Work refusal was also disruptive to the class. The witness reviewed J105 the IEP from the initial eligibility meeting on May 18, 2012 T122 and that the student’s deficits and behaviors are not caused by laziness T125.

The next witness was she is the reading and writing lab teacher at the middle school having held the position for 5 years, she has substitute taught in different districts before that T128. She is New York State certified in social studies 7-12 and literacy 5-12. The students profile in the RAW class include those students that scored 1 or 2 on the ELA test, have 504’s, IEPs T129 and general education students. Normally there are 10-15 students in her class T130. The witness reviewed J72, the 7th grade red team weekly progress reports T131 which contained a December 17th, 2010 report that the student has shown improvement once he was given a choice of books T133 to read that were on an appropriate lexile level T135. He was consistently reading and cooperative but then December 23rd, 2010 he refused to read books the witness selected T136. The teacher indicated that she used a guiding reading approach and that and there were 3 groups based upon the level of reading materialT133, initially the student was reluctant, declined to participate in reading, eventually the teacher engaged the student by allowing him to select his own materials T137. The student was evaluated at the start of the program and at the end of the program; there was vocabulary with vocabulary cards and independent work to complete reading assignments. The students did work on fiction books, selected grade levels were based on lexile level T135, the student did not want to read, and eventually he found “Bones” books that he would read T136. They use a graphic organizer to help with completing assignments and fingers to help write. There were 10-15 students to an aide T137, the student scored an 85 on the December 17th, 2010 report, 85-90 on the December 23rd, 2010 report, 80-89 on the January 14th, 2011 report, on the May 27th, 2011 report he scored a 90 which is a curriculum based assessment. The first test was a 15 created a target of18 which was at grade level and he graded out year end at a 19 T142. The witness also proctored the student’s New York State 7th grade ELA New York State assessment. The student exhibited some test avoidance and still scored fairly well. The student’s vocabulary instruction includes pre-reading, graphic organization, context clues, decoding T145, 1:1 she would encourage the student and he would continue trying T146.

The cross examination of ; the RAW class is in addition to the ELA class since it is a support, but there is no formal communication with the ELA teacher, there were 3 groups with 3 different grades T152. The standard test is administered to all 7th graders T152. The witness reviewed J83 the scholastic reading inventory and he had a lexile score of 522 T153. The students are grouped into 2 separate groups based upon reading, lexile, and grade levels. There is a curriculum based measure T154 which helps monitor progress. The student’s base line was established. The student initially graded out as a 15 with a target of 18 and eventually performed at a 19 and grouped by reading level T156. The student was tested when he began the program mid-year. The student was not assigned to any particular group, due to his reluctance to read the materials in the other groups T157,resulting in the student reading his own books in an areas of self-interest. The student profiles of the class are students with 1 or 2’s on the State assessment which is consistent with her observations. It was difficult to identify the student’s reading level initially due to his reluctance to participate in course area content materials. But once he started reading books of self interest then he reached a level of 7th grade proficiency based on her observations and testing T161. In the RAW program there are students with IEPs, 504’s and some with neither T165. Many have LD classifications, they use graphic organizers. The special education teacher tracks goals, this instructor does not and progress is measured by CBM T164 in January. The witness endeavored to find an area of interest for the student to encourage his reading and have success T165 and for the most part he did what she asked T165. She spent one on one time with the student to assist him in working through the material, he did better with 1:1 T167 quite a lot on daily basis, but there are other students that get 1:1 T172 service. She does a formal assessment everyday with the student based upon observations T172, the 1:1 was based on work completion not reading level T174. She estimated that the student would have been in a low reading group based upon work completion and not ability. She estimated that he would have finished up at the middle to high group and was reading at grade level T178.

The next witness that testified was who was the interim director of pupil personnel services and retired but is filling the position until a replacement is found T180. She has been with the district for 14 years and has had varies positions including Director of Special, special education teacher T185. She was a primary traveling spouse. She has a certification as a district school administrator, an elementary and special education with a MS in special education and a BS in elementary educations. Her duties and responsibilities include overseeing the staff, CSE’s, extended school year and related services T182. She reviewed J50 T183 the letter of ineligibility dated on May 21st, 2010 issued by the CSE T184 based upon initial eligibility CSE meeting that occurred on May 19th, 2010 T184. The witness also reviewed J44 T185 the psycho-educational report with dates of evaluation of March 15th and 16th, 2010 and reviewed by the CSE T186 it contained evaluation tools of the WISC IV which was administered by the district’s psychologist, DO and the WIAT II T187 was administered by the special education teacher T188. The WISC IV resulted in composite scores in the average range with percentiles scoring from percentile through the percentile. The WIAT II resulted in scores in the average range; with scores ranging from with percentile scores between the Based upon that testing the student was found ineligible for special education services at the CSE meeting in March of 2010. Those score were compared to the Woodcock Johnson’s administered in the 2012, J105 which reported a WISC IV full scale IQ in March of 2012 as and the results of the Woodcock Johnson in the average range of for most of the subtests. The witness reviewed J105 the IEP the student was classified as based upon the student’s T196 and the witness opined that there is no indication of a learning disability T197.The recommended services included an integrated co-taught class 5x weekly for 42 minutes and resource room 5:1, 5x weekly for 42 minutes to work on areas of study T198 organizational and written language T198 and working on reading skills, he was in a co-taught special education class with a SET for ELA and Math T198 and they worked together on organizational skills and writing with the assistance from resource room 5:1. The witness next reviewed the PLPS as contained in the K school progress reports for 2012 T199, J92 T200. The witness indicated that the student’s performance at K school was a factor in classifying the student based upon his performance which the student continued to have study skill deficits T206, needing structured checklists and indicating a lack of focus. The witness reviewed J105 the CSE’s IEP which initially classified the student as and in particular the modifications and the accommodations T207 which would tend to assist the student in having greater success in accessing education T208 such as modifying written assignments T208, word processor T209 which would facilitate pre/rewriting which can be very tedious for a student with T209. There was refocus and redirection T209, a graphic organizer T210 and seat arrangements T211. Also the issue of an IEE was initiated T213 by the parents and the district did not say no, however they indicated that based upon the research of previous IEE in the 3 county area T214 they capped off the district’s contribution to IEEs to the level of 0 T214 which would appear to be for all IEEs regardless of the area or level of expertise of the evaluator.

Initially referred to the CSE was based upon the parent’s academic concerns, the witness reviewed J269 the May 19th, 2010 determination of ineligibility for the 2009/2010 school year T262 because of parental concerns of academic progress. The witness reviewed the IEPs and the educational evaluations T264 and the CSE did a full initial eligibility determination based upon all necessary testing for complete and comprehensive determination T265. There were cognitive, academic, evaluations T261. There were behavior issues such as calling out, getting out of the seat, T266 and not following directions but there was no FBA performed because one was not requested. Typically such follow-ups would be referred to a response to interview team at the building level T269. There was a review of the reading and writing essay component of the WISC IV by the CSE. The district acknowledged that that the student had a disability which is a LD T272 it was compared to testing in 2010 and 2012 and the question is that it showed up for the testing in 2012 but not in the 2010. Further testing was warranted through the parents providing follow-up with a medical practioner T276. The student’s needs were being met in a classroom setting in 2010 T276. He failed subjects and there was a disciplinary suspension, but there was no social history used on initial eligibility determination T277 which is a necessary component of an actual evaluation. The classroom observation typically is included in a psychological evaluation by the social psychologist T278. The witness’s job is to review eligibility or ineligibility determinations. The witness also reviewed J264 the November 16th, 2010 T279 CSE ineligibility determination was based upon a referral because of the student’s T280, the student was taking medications and the re-referral was made to see if the student qualified but there were no amendments T280 to the documents on the comments sections nor request for additional information. The witness indicated that the student may have met the criteria for a 504 Plan T283, but did not recall. The witness chaired the November 16th, 2010 T286 meeting to make sure that all aspects were discussed, everything was discussed and some things were left out, but there was no fault by the CSE as indicated in report. There was a meeting on May 19, 2010 and there was a meeting on November 16th, 2010 T287 but there was no meeting until May 2012, but the student was qualified based upon his scores on the March 2012 evaluations. The scores were reviewed and information discussed T288. The testing played a role but the student scored in the average range on the test. The tests scores in the average range were a factor to determine whether the student qualified for special education T290. The 2010 test scores were comparable to the 2012 scores but the difference was based upon a determination on how the student was functioning in a classroom setting T290, but they had insufficient information about how the student’s was impacting his ability to learn T290. There were weaknesses in writing and there was an acknowledgment of a diagnosis. It was discussed but the determination of classification T291 was based upon which is impairing the ability to learn and it was not based upon a diagnosis of from another agency T292. However the K school DHK and Dr. RB documents reflected diagnosis of T292 & T293 and there was also . The witness called the K school director with no response T295. The witness did not ask about K school strategies because the district’s special education teacher are well qualifiedT299 & T300, KB felt the integrated co-taught classroom was a very appropriate program even though there are 20-25 T301 students in the co-taught classroom and the at the K school, less than 10 T301, but in May 2012 the witness was not aware of deficits in reading T303.. Some students with diagnosis have 504 and some have IEPs some have nothing depending on the student’s needs T304. The 504 provides no programming but accommodations/modifications which allows for refocus and redirect, graphic organizers T305. The IEP provides programming, the difference would be if there are significant difficulties in the classroom setting requiring the need for the special education teacher to focus, T306 redirect, provide study skills and organizational skills with goals T306 working toward bench marks. There were 2 writing goals and they were sufficient to address the student’s writing difficulties T307. They provided support in writing because the sequence was challenging, there were some organizational issues, and there was a laptop word processor provided, pre-writing, post writing. The reading goals were not addressed because there was not determined to be a need T309. The witness reviewed J234; evaluation provided by SD at the middle school, it was a comprehensive evaluation which yielded sufficient information. However the summary conclusion contained no recommendations in the report that was done by the CSE T311 because the district practice is not to include it unless there are significant findings to include T312. Parents requested an IEE on June 6th, 2012 T313, was offered based upon J236, J218 was an approval request for an IEE, the witness responded by letter dated August 29th, 2012 T315. It was approved. There was a list of providers, the district has criteria for approval which was you pick but and the district will p [ay up to 42400. A letter was sent to the parents for Dr. B, with approval up to 00 T316. This was based upon a general research for an IEE but not particular evaluation plus the research was a couple years old T319. The parents had requested a student profile on June 18th, 2012 for the ICT T321, which was recommended by the CSE of May 18th, 2012, could not be provided because the class was not yet set up. In high school it’s a question of scheduling which is a factor in assignment of classes> May 2012 T320. The CSE reviewed the recommendations ICT and resource room, special class self-contained J105 was considered but a self contained would have been inappropriate. The J102 prior written notice is good prior to implementing stated no other options where requested. The parents wanted additional information about the district’s program T333.

On re-direct the witness was quizzed regarding the appropriateness of the student’s 504 plan, she does not review or have any knowledge of 504 plans T335. The IEP from May 18th, 2012 and the Woodcock Johnson being referenced to J105, page 2 regarding reading deficits T325 did not show reading deficits T338.

The next witness that testified was she is a special education teacher at the high school, has been there since 1986 T339, has previous experience in other high schools summer programs. She has an MS as a special education teacher, BS special education/psychology T340. The witness certified SET K to 12 the high school teacher social studies / US histories self-contained, inclusion and resource room format t340. She has provided remediation for weaknesses T341, homework support and has contact with general education teachers T341. A self-contained is a classroom with a TA and a 15:1 setting T341, inclusion she also is experienced as a special education teacher in a co-taught classroom with 12 classified students T342. She reviewed J122 the IEP from May 24th, 2013 for the 10th grade, 2013/2014 school year. She has attended and participated in 2 CSE meetings T343 for the student and is familiar with the special class reading the 15:1. She taught that class the previous year when they worked on sound symbols relationships through multi-paragraph essays, phonemic awareness, syllabication, open, closed syllables, spelling rules, sentence structure T344. The special reading class is all classwork there is no homework, around the regents track with inclusion, multi-sensory Orton Gillingham based reading program T345, there is spelling with direct feedback dictation, reading comprehension, writing assignments, syllable puzzles, short reading novels, reading each day, reading out loud, 2 xs then 3 xs per week in a 6 day cycle T346. She also reviewed J105; the class profile includes an LD, visual impaired and Students all have deficits in reading T347. She also reviewed the Woodcock Johnson and is familiar with the tool and its subtests. The applied problem deals with word math problems involving abstract reasoning. Calculation is a math operation using a calculator. Letter word identification is decoding skills T348, passage comprehension is reading and answering questions and understanding a word in the context of writing essays test, visual prompts and sentences T345. The Woodcocks Johnson the average is 90-110 T350 which is middle to high based upon last year’s student profile T350. The student had deficits writing and teacher would provide supplemental instruction to help succeed in content area classes T353.

The cross-examination of the witness revealed that due to her longevity she is” grandfathered in” T354 and does not require to meet all the continuing education requirements, however based upon district requirements she takes a of minimum 5 hours per year T355. She attended the April 24th, 2013 CSE and the student would have been on her schedule if her schedule remained the same. She would be the teacher providing reading/teaching services at that time. She is assigned with the 10th grade ELA, Global, Science election, Math, Art, Music or Tech programs T356. She interacts with the academic content area teachers; she has lesson plans and common goals, but does not train classroom teachers in reading T357. There was an increase in the student’s writing skills and there were formal meetings and informal meeting T358 with general education teacher. The student’s scores for the most part are in the average range, but the 81 and 86 were below average. The student could still have reading deficits with these scores T358 sometimes more, testing by the school psychologist meeting with the guidance counselors can determine the strengths and weaknesses in reading but can’t ascertain strengths and weaknesses based on scores alone. The witness was trained in Orton Gillingham system T360, multi-sensory instruction incorporating visual, auditory, and kinesthetic and, tactile sequence model, statically relevant success. She was trained by BOCES with 8-9 sessions full day by Dr. K., T361 who did observe one of her instructional sessions, however is was revealed that she was not certified as a Orton Gillingham T362.

The district’s last witness was who was a coordinator in special education services T364, having been with the district for 6 years with qualifications including an MS plus 30 hours in special education T365, a BS in special education, she is certified as a school district administrator and SAS. Her duties include chairing CSE meetings T366, observations, reporting. She performed a classroom observation of the student while he was at K school T365 and also chaired a CSE meeting in the spring of 2013 T367. During her observations she sat in on an ELA and social studies class, during the ELA class T368 the discussion was regarding a Shakespeare’s Othello. They use graphic novels, snippets, question/answer and a power point T368. The student was one of 4 or 5 students sitting side by side; all the students had IPads T369. The global class was a smaller group they were reviewing the Trojan Horse and the Trojan War. There were images on the screen, projects based upon internet research. The student was talking to another student and had been redirected by the classroom teacher to put him back on task

T370, he did it without resistance. But did well with redirection T371, he listened and was respectful. The witness compared services provided in J122 and J105 T371 the two IEPs that the witness chaired. She was questioned about special classes May 2011, the Integrated Co-Taught class for global/social studies and ELA and resource room. In April 2013 the CSE added additional services in the form of a special reading classes 15:1 because there more reading weaknesses and some deficits in writing also. J122 was based upon the Woodcock Johnson and the WISC IV which indicated average cognitive abilities T374. There were some weaknesses with 81’s and 86’s T375 which are low average, which justified an classification T376. It was discussed in the April 24th, 2013 CSE meeting T377 which resulted in the J122 the IEP, the witness indicated that the father questioned why was not a classification and why they kept the T378 and the response was “because of the contributing factor to the impediments to learning was the ” for example “redirection” when the need is for redirection and it is not necessary to have a FBA T378 assessment since it was a belief that was impacting his education and his progress and his academics T379. They did not see behaviors of the student in the K school T379. K school academic dean is Dr. L., T380 who participated by phone in one CSE meeting. The witness also reviewed J148 T381 a quarterly report from the K school, which was reviewed by the CSE T382 was an annual review of June 13th, the goals J122 took into account the K school progress reports and it was believed that the goals were appropriate T383. There was an acknowledgment that the student was not a self starter, was not an independent learner and did not always turn assignments in on time, was distractible T384. These were on consistent with her observation while he was at K school T385. The witness felt the program was appropriate and the student was not appropriate for self-contained T385 because it was too restrictive T386. The student was appropriate for the ICT program to provide a special education teacher to support the student. The witness also indicated that they discussed the continuation of services including available 12:1:4 T387 life skills course, a 15:1 T387, the ICT, resource room and AIS. The witness also reviewed J127 T388 the program review, of April 24th, 2013 T389. The parent’s of the student stated he was going to go back to K school, but there was no new reports provided at the meeting T396. The witness also review J150 which was a test date of May 15th, 2013 and was not shared at the CSE meeting of Jun 13th, 2013 T390 which revealed some test scores from the K school, nor was J152 T390 the May 31st , 2013 scores shared in particular page 3. Her comments were consistent with her observation, there was J127 T393 there were no programmatic changes to the IEP, no comments, minimal discussion with the parents, even though the parents requested said CSE meeting. There was a J121T394 prior written notice from them April 24th, 2013 T394 and there were other options considered at the CSE meeting T396. The witness compared goals from the J105 and J122 T396 they stayed the same since they were appropriate and felt all goals were appropriate. They never had direct knowledge that the student met the goals, so they were continued T398.

She chaired the January 2013-2014 school year IEP meeting and she reviewed the previous IEPs but did not review any other notes or any other IEPs before that, even though she chaired the May 2010 CSE meeting T400, she felt the April 24th, 2013 IEP T402 was appropriate and supported the student in areas of weakness, providing services based on and designed to support his writing needs. Dr. L., T402 the academic dean of the K school was invited to participate and participated by telephone T404 so that they could hear about the student’s current level of progress. She received satisfactory information from Dr. L. T405 to develop the IEP, she did not recall if that Dr. L talked about reading or goals. He offered a synopsis of the student at K school and the no opinion of what the student needed and she did not ask about goals that were carried over T406, because the student’s progress was not evaluated in the district T407. They also reviewed J188 T408 the progress reports from K school. There were student writing goals but not reading goals. Prior goals page 5 included writing up to 3 paragraphs T409 although the progress reports from the K school indicated that the student was working on writing 5 paragraphs J188 T409. They also discussed the continuum of services that were available for students with needs provided by the district and the witness reluctantly acknowledged that if the district was unable to provide a program that a suites the student’s needs they would place the student out of the district T410. They also reviewed J127 T411 the IEP from the June, 2013 meeting response to the 10 Day Letter, J286 was a letter to KB, 10 Day Notice to K school which she did not think that they only had 10 days to respond and parents did not say much at the June 2013 CSE meeting which was a response to the 10 Day Notice T416. The recommendation in June CSE meeting was not learned by the parents and when they wanted to have discussion with the CSE they did not make an offer of additional support. Additional support for transition back to the district but none was offered nor discussed, nor documented in any kind of report or minutes J127 T416.

DO school psychologist who has a MS T448, BS in school psychologist, is a certified school psychologist whose duties include evaluations T449, counseling, sub-chairing the CSE meetings, counseling teams, initial referrals where disabilities impede learning. The witness reviewed J44 T450 the psycho-educational evaluation of March 2010 which included the WISC IV T452 that the witness administered and the WIAT 2 T451 which two of the special educational teachers’ administrated the math and the other the reading subtest. They rely heavily on the WISC IV T453 because it is the most commonly recognized cognitive assessment tool with sub-tests and full skill scores. The witness reviewed WISCIV T454-455 and the WIATT there are with similarities. The WISC IV tests four areas : and vocabulary, verbal comprehension index which is how students think and reason ; Perceptual Reasoning which test non-verbal problem solving; working memory which is short term working memory; and processing speed which is speed of processing and visual discrimination T453 block design is a perceptual reasoning subtest, matrix subtest is fluid reasoning, digital span is a working memory subtest with remembering numbers which is number sequencing and written. There is a coding component the filling in of matching symbols. With significant matching the composite scores are used regarding cognitive levels and the WIAT T459 is also used because it is the best indicator of academic school based performance. An average scaled score is between 8- 12 and the student scored an 11 on similarities, 10 on vocabulary, ands 7 on comprehension. And all scores were within the average range. Based upon the aforementioned the witness felt that the student’s cognitive levels T462 were average and the cognitive and the academic performance levels were comparable T463 and there was no discrepancy between the 2 standard scores which is how to determine A is usually 15 to 20 Raw Scores and a standard deviation apart and the student was at T464

Regarding cross examination the witness was quizzed regarding whether the educational evaluation was representative of the student’s levels. The witness was quizzed T466 regarding the J44 the psychological educational evaluation. There was a student interview T467 which was reported in the body of the report which included a 5 minute discussion prior to the administration of the test. It was reported that the student T467 did not like school, it was boring he hated math but liked science. He was not very interested in school T468. It was important to engage the student T468-T469, he liked science and it was important to report this to the CSE on May 2010. The witness had no independent recollection of the interview T470 but it was it was contained in the report about the interview. There was a classroom observation T471, normally it is a 15-20 minutes which occurred on May 15, 2010, it was sufficient to obtain a basis of the student, but she believed that the student was impulsive T472 and unfocused. These items would impact his education. The reason for the referral T473 was academic and behavioral issues. There was a behavioral specialist, the witness did not delve into the realm of behavioral issues T473, she signed the report, and she did seek out the special education teachers regarding the WIAT. There were some behaviors that were reported, but the behavioral specialist T474 deals with the disciplinary issues T475.Even there was issues of impulsivity T472 and distractibility and not being able to focus, said component was not incorporated into the report since it was the witness’s opinion T469 that she was there to assess the student’s cognitive abilities T476. This is the case and notwithstanding there was an ineligibility determination by the committee regarding the student’s eligibility T477. Quit often they do not include conversations, communications and, discussions in the report. The witness was quizzed regarding T478-T480 the record review which included the student’s permanent file but the witness did not list what was reviewed in confidential file which would include reports to the school review team T478 because of concerns of reading, but there are only report cards in the academic file. This is the case regardless of the fact that there was concern about the student’s reading in the past T480, it was reported that the student had potential T481 to do better, notwithstanding the fact that the student had a history of concerns regarding his reading. He was referred to the CSE T183 because of issues of reading and behaviors. They wanted the student to succeed initially there was progress in kindergarten T481 and 1st grade. In the 2nd grade he had difficulty concentrating and reading, there was a BIP introduced. The witness was not clear as to who implemented or created the BIP T482, whether it was the classroom teacher, but she did not. There were rewards T482 provided at home in an attempt to keep the student motivated. The BIP did have an impact upon learning T485.

The witness reviewed the special education plan for the district and the school psychologist is responsible for reading FBA T487 and BIP. An FBA is normally is done T487 over a period of time; it can be 6-12 weeks. The team collects data T488 with a goal of identifying behaviors and treatments for those behaviors. The team takes data on the behaviors, the teachers and providers regarding the BIP T488 on who can do it, teachers, special education teacher however a BIP based upon an FBA is more comprehensive and in depth. The witness assists teachers with interventions and strategies T490, she does not do assist unless the classroom teacher asks or if the parent would ask. However a referral to the CSE is a request for assistance T489. The initial referral did request and contain a basis T491 of the review on behaviors, there was a report observation but there no recommendations T492 based upon the observation. Development and social history was not available, was not referenced in the report, and was not reviewed by the witness. The witness felt that T492 was not a factor. The student was not classified because the student was within average range and was not impacting T493 his capabilities even though she knew DK T493 was a foremost expert gave a diagnosis of The district testing did not show a cognitive disability even though the remedial teacher did the reading screening back in 2007.

The next witness was T497 she is the school psychologist with 10 years experience T498 in the district with a MS in psychology and certified as a school psychologist. Her responsibilities T499 include testing, evaluations, CSE meeting and sub-CSE meetings, consultations of teachers, parents, 504 meetings, interventions and the bilingual evaluations. The student was tested in 2012 T502, the WISC IV was done Mach 15, 2012 J236 these are the most commonly used cognitive assessment T503 tool. She uses others, but has not used an of them in the last 8 years, short term memory, working memory, processing full scale, there was no WIAT, DIMST but there was T511 with the Woodcock Johnson T5005-T506 which evaluates T511 the strengths and weakness, the Woodcock Johnson subtest includes applied problems, math calculation, letter identification with reading, comprehension T507. The witness reviewed the scores T508 and they are within the average range for applied problems, comprehension, letter word, index, PC spelling, writing sample sentences. The Woodcock Johnson T507 is scored on a raw scale and computerized results entered for full scale. The Woodcock Johnson and the WISC IV are normal the scores, the WISC IV was in the average range T516 the writing and spelling were in low average and areas of weaknesses.

On cross-examination it was reveled the WISC IV T511 is the most common issued and also the Stanford Benet T511, but that was more than 8 years ago. The WISC IV T516 is very accurate it is a strong test, there is a letter from the Dr. B. regarding which the witness did not recall T513 is more a medical term used for a diagnosis and is based upon criteria, special education classification is different.

was the criteria but it did not mention T515. It was an abnormal criteria based upon the Commissioner’s Regulations. The student was reading T516 at the same levels as the other students. The Woodcock Johnson is a 100 scale and passage with comprehension 98 She did not know what diagnosis was based on. The district does not utilize outside sources because they have guidelines and the Commissioner’s Regulations T518. The usual protocol for the district is to conduct psychological evaluations with classroom observations but he was not at K school. It was documented she did not observe the student at the K school unless they are asked. She could talk to the district teacher last year T520, but not at K school. She reviewed all the records but did not list them T522. When comparing the Evaluations of 2010 and 2012 T524, the difference was because of the review of records were a general statement but not listed on the IEP CSE T530 and the observation T531 was only during the test. The witness relied upon was the 1:1 T527 observation of the student while taking a test T527. The Woodcock Johnson showed weakness in spelling and writing. The witness indicated that at times students declined T531. The WISC IV fell within average range T550. She reports on the cognitive. She did not recall behaviors, discussing the BIP, or reports from the behavioral specialist T537 and T545. She did not have a social history but she felt that she could complete the evaluation after the full evaluation based upon what she had in her possession T540. On re-direct it was pointed out that the May 11th 1998 evaluation was actually the student’s birth date T552 which was actually the 2010 evaluation T551. The witness thought that she reviewed the 2010 evaluation where the student was found not eligible but did not specifically recall.

The parent’s first witness was Mr. M. the student’s 7th grade social studies teacher T581 during the 2011/2012 school year three years ago; he was not familiar with the student prior to the commencement of the school year. During the first team meeting of the school year, he became aware of the student. The student was diagnosed with T582 which the parents had told him the student had dyslexia T583 in the first or second quarter. The student academically had ups and downs T584; he was reluctant and resistant to reading. The student had a 504 plan put in effect T585. The witness gave the student a lot of 1:1 T586 support because the student needed it. The student became comfortable asking for help. He would help him on tests T586, encourage the student to answer all questions and at times would walk the student through the questions and answers prompting the student toward completing the tests. Although the student did not exhibit bad behaviors in the classroom, he would become discouraged T587 like make many 7th grade students. The student was always respectful he would engage in work refusal T588 because he didn’t know or couldn’t do it. The witness would encourage T589 the student to perform better, the witness did not feel that the student was lazy T588 but he struggled to do his best effort and was often overwhelmed by the task. The witness reviewed J64, the witness did not see any specific reports indicating that the student had T584/T592 but was self reported by the mother and father; he knew from the mother that the student had difficulties with homework T593. The witness had indicated that the student was having similar difficulties in other content areas and across the board with assignments. He was not quite sure when the 504 plan T591 was implemented T591. These were grades dropping and then increasing with implementing modifications and accommodations. The student’s behavior was inconsistent at best, he was never disruptive T587. He only dealt with the student outside of class when he came in for extra help at times he would be teary eyed T597, which is not typical 7th grade boy behavior he did not recall the student using alpha-smart or word processor T598. The witness reviewed J74 T598 which is an email from the student’s special education teacher indicating testing modifications for the social studies final grade exam. The witness was to encourage the use of the accommodations but, the email indicated that the student could use alpha-smart but he probably would not use it. The witness also reviewed J67 the student referral to K school dated 02/24/2011 T301. Regarding the 504 was in place for 3 months, the student performs better with one on one, confidence was a factor, the student was struggling the parents were passionate T602 about the student’s school, he was a good boy and the witness trusted that the parents did their best and that is why he signed T603 the reference recommendation for the student to attend K school.

On cross examination it was reveled that he spent 4 years T604 with the district and he is now with the high school, he coaches sports T605, he has a BS in history T606 and an MS in literacy, and he is certified in grades 5-12. The witness indicated that he would sign any referral if asked to by a parent or a student T606, and the 504 plan J61 was in effect December 7, 2010 T609. The witness reviewed J72, the district’s 7th grade red weekly progress report from the 2010/2011 school year. The reports start December 17, 2010 T611. In social studies, the student graded out at 50% and showed improvement. The student’s social studies class for December 23rd the student scored a %, the January 10, 2011 T612 the student’s work ethic was improved he scored between a range, on January 14th, 2011 T612 the student was improving with estimated grade was between a T617, but received a on the last test. On January 28th, 2011 the student scored on February 4th, 2011 T613 there was no new grade, but the witness reported that he was concerned about the student’s negative attitude toward school. On February 18th 2011 T614 he reported that he had a , but his work ethic and attitude was better this week, February 25th T 314 was blank, on March 11th the student scored a his average improved drastically as did his attentiveness and his work ethic. On April 1st the student grade was an April 8th the student scored a 65-75 T617 but refused to do a chapter 10 test, April 15th the student scored an for the 3rd quarter. On April 29th T619 the student was a low scorer in the low s but was doing well, on May 27th, 2011 T622 the student scored an and he continued to participate. On June 3rd, 2011 T622 the student scored a and his work ethic had improved. The witness also reviewed J70 T624 a student report for marking period April 8th, 2011 for the first, second and third marking periods, which the student’s scores in the social studies was the highest amongst all his other content area classes. The witness also reviewed J70 T625, which included the 4th quarter marking period and the student improved from the 3rd to the 4th T626 marking period after the 504 Plan was implemented.

The parent’s next witness was Mr. P T628 the head of school from K school. He has been there 2 years; he is in charge of staff, enrollment, leadership, and administration. He reports to the Board of Trustees T629 implementing the strategies and admission plan to assist with students with in school, college and beyond. The witness T632 interacts with students everyday observing their everyday experiences. He has a BS T633 in English and MS in English although he is not degreed because he did not complete same within a 10 year time window T633-T634. He also went to KW Law and obtained his JD and worked for Oxford Press and a variety of different schools including K school, he is certified and trained in the Orton Gillingham approach and follows, and has obtained 70 hours of training T636. Most teachers have MS’s and all have BS’s. In the Orton Gillingham approach, and its not named a program because it is not like Wilson where there are levels and steps, the Orton Gillingham approach is a multi-sensory approach with diagnostics T638 and prescriptions based on observations and adjusting levels. Sequencing is a factor with phonics T639, spelling and coding. It helps with reading, writing and spelling. There is 1:1and helps in content areas T642. They work to identifying patterns of errors T641, i.e. vowel teams, decoding and then develop a lesson plan. They work on skills with challenges toward mastery, processes, diagnostic and prescription. There are 38 teachers T642 and approximately 32 fulltime and 80 students. The application process entails a review the assessments from the district, student struggles with reading writing or spelling and needs help, there is tutoring one on one, small group instruction, they ascertain whether the student cognitively has the ability to handle the program. They do not accept T644 emotional disturbed children or on the spectrum if they have severe behavior disorders and no non-verbal learning disabilities. Class size tutorials one on one, 5-6 in math T645, 8-12 students T646 in the other classes and the instructional day includes everything without lunch. PE is done through an athletic sports program T646, he noticed the student who is accepted prior to his commencing as head of school T647 which was September 2012. He did review the educational plan, the 504 to determine if the student was a good fit for the K school T648. The student had a diagnosis of from the founder of the program, DKG, T648 the student struggled academically and did have some behaviors which is not unusual with students with T649, the student attended in the 2011/2012 school year T650, he was a dorm student. Some behaviors initially were that he did not want to turn the lights out. They reviewed the PLPS T651, when the student arrived he was several grade levels behind in with writing, spelling and to some extent reading T652. With social and emotional, he did not pay much attention needing redirection. The residential program is in the dorm, there was a residential component, lived there, there are meals. There is a proctored study hall T654 by a trained Orton Gillingham instructor, which is one half hour before dinner and an hour and a half after dinner which is 6 days T654 a week. With residential needs, the proctoring provides support academically and the proctor does study halls in the Orton Gillingham T657 approach; absent the proctored study halls the student would not being doing as well. The proctored study hall reinforces skills. The refusal of work is seen at times there is a change over time with narratives they see the grades increase when their refusal is not increasing. The student improved over time T658.

The best strategy with dyslexic students is to build skills that are weak T659. They worked to build skills as the skills increase the confidence increases. It was still difficult to do math T661, homework was difficult. The staff reads each other’s reports as to his progress to establish consistency with reading, writing and spelling. Vocabulary and reading comprehension progress is measured with the pretests in September and posttests in May. Progress was stressful. Testing is not done by the tutorial teacher to be as objective as possible T662 otherwise there could be a disadvantage T665. Use of a rubric T663 was an academic dean, there is advancement there is progress more in the 2012/2013 T665 then in the 2011/2012 T666, content was much better also, carryover of content areas, tutorial skills, spelling increased with assistive technology. They address vocabulary T667, reading comprehension and decoding. Comprehension increases academic scores, however increased use of a word processor T668 does not remediate the deficits just with technology, but there are accommodations and modifications. The student needed help in the assistive technology areas and which was 1:1:1, Dragon Speak or Kurzweil. There were advances in increasing skills, speech to text T670, text to speech software technology. 2011/2012-2012/2013 approximately T676 $ per year T677, there is a deposit and a refund; they have always returned the refund. For District CSE meetings they send information about the program and progress reports and provide insight into the student’s needs. The school itself goes up through grade 12, but there is a post-graduate program T681, in his opinion the student needs the residential for the 1:1 tutorial, working on reading comprehension in the 1:1 setting T683 using the Orton Gillingham approach in a proctored study hall T683.

On cross examination the parent’s enrolled T685 the student at K school because of his and low confidence and academic struggles. The 5 day T686 program is Sunday through Friday, the 7 day program T687 they can go home on the weekends. The 5 day is slightly less intuition. The witness was quizzed T689 regarding school year which is 150 days not 180 days T688-T689. But commences on or about Labor Day and continues and ends near the end of May or early June, the school has a trimester schedule. There are mandatory sports in lieu of PE T691. It is accredited as a independent school and as a charter school and does not follow NYS Regents requirements T691 there is no classes on Saturday, there are half classes on Wednesday with the school ending at approximately 1:50PM as opposed to 3:20PM T692 to allow for the mandatory sports. Approximately 50-60% T693 of the teachers have MS’s; some have NYS Certifications T694, but is not required. There are approximately 30-32 fulltime teachers T694, administrators teach at least 1 course. He did not observe the student at the district nor was he familiar with the district program T695.

The witness reviewed J134 and the school years trimesters are broken down as follows: the first trimester is September to Thanksgiving, the second trimester T696-T697 from Thanksgiving to end of February or beginning of March, and the third trimester from March to the end of school T698. There are 6 reports in a school year and in the interim halfway through and the final report at the end of the trimester T701. Other than the tutorial class which is 1:1, the content area T702 classroom teacher is the only adult responsible for instruction and class management T702. The witness being the head of school is not directly involved in the day to day issues of discipline and academics. There is a Dean of Academics and a Dean of Discipline when there are issues that are severe enough then it comes across the witness’s desk T708. As a result he did not have specific knowledge of accommodations and modifications provided T709 to the student involving graphic organizers T704-705, color coding, and assistive technology other then the students were provided with IPads for the 2013 school year. The witness reviewed the interim reports and final trimester reports T706 J134, T699 J135, T712 J137, T726 J138, J139, J142, J144, J146, J147, J148 and J152 T742 and in particular tracking the teacher comments focusing in on student progress in the area of effort, homework assignments and, classroom behavior T700. The first interim report was for grade 8 T715, dated October 11, 2011 T720 approximately one month T700 after the student started classes at the K school. In math it was reported that the student refuses to exert any real effort in trying to T714 become a class clown instead T701. Literature, the student’s inability to submit complete assignments on time inhibits his level of success, organizational strategies would be beneficially to him, and he struggles to keep his comments relative to the discussion T707. In history the student’s efforts have notably dimensioned, he often becomes a distraction T717. In science he has yet to get motivated T710. It was noted that loss of focus and distraction is not atypical of dyslexic students after a month or so and the school uses a differential and calibrated program to not overwhelm or depress the students T738. Typical classroom management behavior involves seating T793, typically these issues of chronic would become to the Dean of Students and would float across this witness’s desk and would be up to the particular student and the dean to deal with accommodations and modifications T824. The witness reviewed J135 the final report for the first trimester dated November 18th, 2011 T718, notes reported that the student often finish work before other members of the class T713, rather than attempt an extra credit questions or help a classmate, he will attempt to disrupt the learning environment. He is not willing to exert any additional effort, but prefers to entertain his friends. He was moved to pre-algebra T717 at the beginning of the winter term for more challenging math, literature 8 T715-716 he has made improvements on completion of homework assignments and organization since the interim, but his behavior is less than satisfactory, he frequently disrupts the other student with his inability to stay focused T719 and sit in his seat and had difficult waiting his turn to speak. In history 8 T723 he usually submitted his assignments on time; he showed a minimal amount of effort T718. If he is interested in the materials it is apparent, but struggles at times to maintain self control T718 and cannot resist the urge to entertain his classmates T719. He has difficulty remaining focused on most days and often becomes a distraction in class, but he was never disrespectful. The question arose whether there was a pattern of behavior T719 making it difficult for the student to access core subjects. The witness indicated T721 that you generally see improvement throughout the first year and continuing in the second year. The witness next reviewed J137 T726 the interim report from grade 8, dated January 18th, 2012 T726 in math there was a comment that his lack of effort is reflected in his grade, he often doodles in class T727, chats with friends across the room and does not hand in homework assignments T728 timely. In literature while he ended the fall term strong T721, he has been able to fall pack into his old habits T731 and he did not work or at all. In history the student started T769 the semester with a strong effort but his recent assignments have been submitted late, with a minimal effort, he struggles to maintain self-control in class T733, for science the weekend proctors have been asked to double check to see if he has completed his science assignments during Sunday T735 night study hall T736. The witness next reviewed J137 and J138 T754 the progress report dated February 27th, 2012 from the end of the second trimester. In pre-algebra the student’s biggest challenge is to complete his assignments and to remember to bring his materials to class, although he knew how to do the assignments, he would go to ACCO to complete T744 them because he did not effectively use his study hall time. Also he came to class T750 on multiple occasions without his calculator, pencils, paper and textbook. It was suggested that he use a checklist in his dorm room T751. On the term exam T750 he rushed through the test in a half an hour and made many carless errors and did not earn a passing grade. The witness reviewed progress report J137 and J138, for literature it was reported that the student was inconsistent although his weekend assignments were submitted, he did not always follow directions correctly, which resulted in lower grades, his behavior was erratic T754, sometimes he paid attention and other times he seemed to have an uncontrollable level of energy and lack of focus T754. Literature 8 the student had another inconsistent term and history T755. In physical science the teacher was please with his increased efforts to complete and submit his homework assignments in a timely fashion T755, but he earned a D+ on the term exam because he skipped questions T756 and did not accurately explain some of his answers, he spent a short amount of time completing the exam. The witness next reviewed J139 T757, the interim progress report for the third trimester dated April 18th, 2012 it was reported in math that he has trouble turning in assignments but has no missing assignments T758. In literature some assignments were submitted thoroughly and thoughtfully and others lacked any sign of real effort T759. The witness reviewed J142 T761 the final report for the third trimester at the end of the student’s first year at the K school, the strategies worked for a while but stopped T763 in particular the literature 8 progress report commented that the student’s progress during the final term remained inconsistent, his level of energy had peaks and valleys T766 and mirrored his level of engagement and on the final exam the student earned a 78 T768, but he only used half of the allotted exam time to complete his test and his rushed approach effected his grade. The witness was quizzed T808 regarding the third teacher that reported that the student was rushing through exams T768 two in February 2012 and one in June of 2012 and it would seem to indicate a pattern involving writing deficits because with writing skills there is a sequence of skills. He was not sure where the student was in his 2011/2012 school year T773, but that is not unusual for students to avoid work if they struggle T783 in math. In study hall he did not use his time consistently T816. K school does not accept students with a diagnosis of emotional problems, but students may need to get outside counseling if it became a problem T776. He was quizzed regarding what level of behavior T816 would be tolerated before it approaches his desk. If goes to point of needing counseling or a level of discipline beyond that of the Dean. The witness next reviewed J144 T801 the interim report from the student’s second year at K school and the middle of the first trimester of the 2012/2013 school year on the date of October 16th, 2012 it was reported that the student had a rough start T783 and was not completing his assignments and without the daily independent repetition was beginning to fall behind and could not solve basic problems T785, his literature work is still inconsistent and in self reflection he admitted that his comments are not always relevant t786. History, he submits his assignments on time but has difficulty following directions. Science had a rough start had trouble paying attention in class and was either disruptive or withdrawn T788, which are similar to the reports in J145. The witness next reviewed J146 regarding the IPad usage T797. The witness reviewed J145 T791 the report from the end of the first trimester dated November 16, 2012; the student’s inappropriate comments were still an issue T805 as was an inappropriate usage of IPad during the student’s second year at the district T809. In algebra T812 J140 it was reported that the student put himself in a tough position during the first half of the term in 2nd year T812 but was inconsistent. He was only able to obtain limited amount of success in the fall, he relied on his personality and his likable qualities to prevent him from having to exert any true effort, he rarely submitted assignments on time T818, missed the majority of what they studied during the fall term. Late in the term he did make an effort to move his seat up front and did 2 weeks of solid effort after a realization he was falling behind and on the final exam he scored a 13 T792, In literature the student was barely able to sit still T795 needs work to curb his tendency to interrupt decision with irrelevant comments, he had problems with his IPad and could use his personal IPad T817 or tech support, but he failed to advocate for himself T798. In global studies T818 he became a distraction in class having discussions with a classmate that did not pertain to the topic discussed but he was difficult to motivate on bad days, but he is always quick to correct his behavior when reminded to stay on topic. In biology he had a difficult time refusing to participate in class activities or labs T808, he took some time before he started taking notes and had trouble keeping them organized and had an “F” in lab because of his participation T810, he did not write up any labs, he did not use his time wisely during review weeks and sat in the corner and played with his IPad or stared at the floor T809. The witness was quizzed as how severe the behaviors must be before it comes across his desk T824 or if any more intensive steps are taken as indicated by the witness suggesting the parents seek out counseling for their student. The witness next reviewed J147 T812 the interim report dated January 16th, 2013 in global studies it was reported that some more success in completing assignments but fails to put forth the effort T815. In oral literature on good days he would work diligently and on bad days he was difficult to motivate and generally disruptive T818. In algebra he was not putting forth his best efforts consistently T814, he has not been submitting assignments and unable to calculate current material T813, he was placed in ACCO to catch up T815. The ACCO is not detention or punishment, but gives the student opportunity to catch up on his homework and was implemented and prevented the student from attending his mandatory sports which he played basketball and other related sports T814. Again the witness was quizzed as how much of a disruptive factor the student must be before steps are taken because a year and a half later the student is still disrupting the instructional process. The witness reviewed J148 T818 the term report dated February 25th, 2013, 5 trimesters into the student’s enrollment in K school a year and 2/3 subsequent to his enrollment T821. In language it was reported that the student’s productivity wavered, dropped perceptively, was unproductive in study hall T819 and was not using his time wisely, but he is unwilling to correct his behavior. Writing is the student’s biggest struggle. Regarding algebra, he does not have enough self-discipline to use his study hall time constructively and complete his daily assignments. To gain retention in material he needs to establish a routine T823 that involves more serious consequences for not completing his work regularly. In oral literature on a few assignments he struggled to submit his work and on the exam earned a 77 T822, the majority of his points were lost because of incomplete or incorrect answers. In global T818, the question was regarding the Orton Gillingham with reference to vocabulary, in biology his answers were incomplete on the final exam T828, he did not address parts of the question he was unable to use the vocabulary T828 words correctly despite being able to take those words, and again it was questioned whether his lack of effort was severe enough to be brought to the witness’s attention. It was a belief that the student had shown progress T820 and he was now being referenced as the class. His efforts were inconsistent but was not shouting over J137, the witness also reviewed J152 the term report dated May 31st, 2013 at the end of the student’s second year at the K school and the negative comments reported did not use such strong language that the student has much more successful term then in the previous 2 terms in literature and he showed signs of success T840 but regressed to his old habits T845. The witness indicated that there was progress because you cannot regress unless there is progress T844, since he was praised for his improved study habits he resulted in minimalist work T845, late submission to lack luster participation. In biology he continued with minimal amount of work during class and weekends T846. The first week he spent playing games and surfing T849- 850 the internet instead of doing work, when the question arose as to class management skills and if there is an ability to control the internet T850 and IPads why this was not done if he was still misusing his IPad.

The father testified, the sole witness on this date, starting with direct examination. The father started by describing the student as a loving, caring child from a close knit family T890. He was uniquely energetic, enjoyed family time T891. Homework was an issue they would spend hours and hours working with their son at home on homework. The father described the son as different between night and day and between home and school. Issues began in 3rd grade with behaviors at schoolT892, resistant at home to do homework that involved writing and reading, the student would become teary eyed when attempting to writeT893. It would take hours to complete simple assignments. There were issues at school; he wrote a letter to the principle attempting to remedy the problem asking that the student be tested T895. It was the father’s belief that the student’s behavior was masking his learning disability. The student was impulsive T895 and had difficulty with testing and assignment completion, he attended an informal meeting and the student was put into a reading T896. The witness reviewed J4 T897 a letter to the principle dated April 10th, 2007 asking that the student be tested for reading problems which run in the family and may be related to the student’s behaviors, no one suggested a CSE at that point. However there did not seem to be any improvement after the reading class T898. Meanwhile the behaviors were getting worse in 4th and 5th grade, the parents would attend team meetings T899 and express concerns and ask for a positive behavior plan because the student disliked school. A coupon positive reinforcement behavioral plan was implemented but, the teachers were initially receptive and in the opinion of the father less so after time T900. In 5th grade there was some switching of classes, but the student became more and more negative with the difficulty in reading and writing, and the father thought that they were being pushed to the waysideT902. In 5th grade there was no testing T905, no improvement and no private professionals either. In 6th grade T904 the student was referred to the CSE and they consented to the evaluation as there was an eligibility meeting and the father did not believe there was a psycho-educational evaluation, social history, FBA or physical examination obtained. They sought private counseling for him T905. DHK, founder of the K school and expert in tested the student in March of 2010 T906. The witness reviewed J271 the report that was mailed to KB at the district office, there was an initial eligibility meeting. The witness reviewed J169 T910 the CSE’s ineligibility document based upon a meeting of May 19th, 2010 which relied upon a evaluation of March 24th, 2010, a psycho-education evaluation, on March 15th, 2010 a CELF 4 and a WIAT II dated March 24th, 2010, WISC IV dated March 15th, 2010. The father’s recollection of the meeting was that the CSE did not recognize diagnosis T910, the student’s was discussed but the CSE did not accept said diagnosis because there was not written medical report confirming the diagnosis of T911 and that the student’s testing was within normal range. The parents disagreed indicating that they thought the student had a learning disability, behavioral issues and that there were referrals for behaviors. During 6th grade calls and letters home were coming on a regular basis advising of the student’s behavior. The student became more resistant to writing T914, he was a different kid at home then in school and they did not agree with the decision not to classify the student, the student needed remedial help in reading and writing. The parents asked for progress reports so they were keeping up on behavior. The parents implemented a token economy as a positive reward and wanted to know based upon the progress report sheets from the classroom teachers if the student was doing badlyT915. The student was placed in an integrated co-taught classroom as a general education student which was a random selection but, the parents were told that the student was getting the services of special education teachers T917. Based upon the referral from DHK the parents hired a private tutor at $50.00 an hour providing tutoring in the Orton Gillingham approach, one hour per week T919. There was some progress but the tutor thought that the student needed more, they enrolled the student in camp D which is on the K school campus based upon the recommendation from DHK and a pediatrician which was a 6 week camp providing academic services for language based learning disabilities with 1:1 tutoring T921 and camp services build confidence with field trips and activities at the cost of 00 for the summer 2010 T922. The witness reviewed J56 the progress report dated August 2nd, 2010 from DHK at camp D which was provided to the school which indicated that the student made the most of every moment of tutoringT929. The witness reviewed J57, camp D the student assessment profile from June 2010 and August 2010 which was also provided to the school. At the end of the summer camp the parents were contacted by representatives of K school regarding the student’s possible enrollment at K school for the upcoming school year with discussions of financial aid and grants T930. Upon discussing this with the student it was a first time in a long time that the student was positive and excited about school he did not want to return to WK district for the 2010/2011 7th grade school year T931. They provided the summer camp profile to KB at the district. The witness next reviewed J264 T932 which is the CSE ineligibility document dated November 16th, 2010 T932 that was based upon the same evaluations as the prior ineligible determination with the expectation that the comments referenced the student’s attendance at camp D, verbal reporting that the student had been diagnosis with and was taking medication. These documents were submitted to the CSE but the consensus was that there was not enough to classify the student as a student in need of special education services based upon district testingT935, but refer the student to reading evaluation by the RAW teacher for building level 504 accommodations T938. The father noted that there was no updated testing and there was no medical written diagnosis of from the pediatrician Dr. D. P-A and P-B. The student was still on Concerta T936 and based upon the testing of the RAW teacher there was a building level 504 Plan approved T942. The witness reviewed PA a letter from the pediatrician Dr. D. dated December 6th, 2010 T945 who was the student’s pediatrician from the beginning and that has been proactive in assisting the parents dealing with referring the student to DHK for evaluation. There is a letter containing recommendationsT946, preferential seating, cueing, separate rooms for tests, extra time for tests, simplified instructions for assignments and assistance with planning and organizational skills, acknowledging a diagnosis of and

T946. However there were no changes in instruction, strategies, organization, modifications or assignmentsT948. It was still taking the student 4 hours to do written homework T951; however they were still getting suspension notices and warnings. The student thought it was a joke because there were no consequencesT953, there was a 504 meeting note that the recommendations were not sufficient. All they did were modifications but the modifications that were being implemented for several school years, things they were already doing but did not work. So they began searching for outside placement T958, contacted K school in February and there were no procedural safeguards provided to the parents. The K school is a language based learning disabilities school T959 and was based upon a referral from Dr. D., the pediatrician T960. However it was a 75 minute ride for the parents. They sent a packet to the district, consents, teacher referrals, evaluations T962. The student was accepted however the distance was a cause for concern; the parents opted for a 5 day boarder T963. They executed a contract in March of 2011 and to hold the position with a down payment T964 which was refundable if the student did not attend. The witness reviewed J75 the 2010/2011 school year T965. There seemed that there were more problems than before with interactions with teachers T966, behavioral difficulties, defiance and attitude toward school. The student received a 61 in math T967and was required to attend Summer school. The witness reviewed J84 T967, the New York State 2010/2011 ELA Assessment in which the student scored a 1 T967. The witness reviewed J53 the New York State 2009/2010 ELA Assessment, scoring level 2 and J22 T969the New York State 2008/2009 ELA Assessment scoring an 11 which was the first CSE ineligible determination. In the 2010/2011 school year, the student was receiving RAW classes which included guided reading T970. The student did not want to read, he had difficulties so the parent purchased a graphic novel T971from the store for use of the student in the class which appealed to the student’s interests. The father thought that the RAW program T969would addressed the student’s reading and writing deficits. In the 2011/2012 school year while at K school they did not hear from the district until the CSE annual review, but there were no changes in program, placement, accommodations all was the same. The student attended the K school in September 2011 for 2011/2012 school year to seek the Orton Gillingham approach in the core subjects, utilizing small class sizes, personnel trained in the Orton Dillingham approach, stressing self-advocacy for older students and proctored study halls T976. The student started as a 5 day boarder, his mood and behavior improved for the 2011/2012 school year, T974 he was looking forward to attending K school. At the beginning of the 2011/2012 school year at school K, when the student initially started there were some behavioral problems because of his transition from the Camp Summer Program to the regular school program which was more rigorousT975 the student was overwhelmed and was encouraged to stick with it, stressing behavioral and self-advocacy T975. The program was very structured, there was some initial transitioning but the student was producing more work at K school then they every saw at district and the parents work with the student on the weekends with his homework. There was no contact with the district in 2011/2012 into March 2012 CSE meeting. He talked to KB disagreed with the meeting and the outcome, requested an IEE and indicated a triennial review would be performed with re-evaluations T977, which were done in March 2012 evaluations. At almost the end of the 6th grade was the CSE meeting in May 2012 with progress reports, interim reports, letters from the Dr., and letters from Dr. D. The witness reviewed PB the 2012 report from Dr. D. who has always been involved in the student’s health, development, and education T989. The witness reviewed J124 the May 18, 2012 T987 CSE classification meeting at which a letter from Dr. D. was presented along with reports from K school. The student was classified as but the father did not agree with the classification which was based on the T990. The father thought that the issues were a factor in the student’s educational difficulties, but he was told that the student’s scores were normal to low average and there were no requests for additional evaluations. The IEP was basically the 504 plan T994 and its accommodations, and modifications but with resource room plus the RAW reading program. The father did not understand why they did all the testing in one day and blamed it on fatigue of the student, which was reported in the body of the report, that the student was fatigued T996. The witness reviewed J218, the letter dated June 6, 2012 advising the district that he disagreed with the district psycho-educational evaluation dated March 15, 2012 requesting an independent educational evaluation at district expenseT999. A follow-up conversation with KB asking what the guidelines were she said “there were no guidelines” and then he should submit his pick and she would inform him if the request met the guidelines T1001. The father was confused about the contradiction. The father selected for the independent educational evaluation Dr. AB based on communications with friends and other colleagues in response to his initial inquiryT1002. The witness reviewed J215 a letter dated June 29, 2012 advising Dr. B that the district had placed a limit of $2,400.00 for IEEs T1002. The father indicated that Dr. B. was .00 which was less than the other prices he had received for $4 00 T1003. The witness next reviewed J217 T1004 letter to KB asking for student profiles_. The witness reviewed J102 T1007 the prior written notice for the May 18, 2012 CSE meeting which described the action that the student was qualified for special education services but no other action was proposed. and no other options were considered T1008 recommending the student to an inclusion ELA/Social Studies, ELA/Social Studies Lab daily, resource room to address areas of weakness in areas of study skills, over and all organization, written language skills, but there were no other options T1008considered at that point in time. The witness reviewed J104 the parents rejected the IEPs T1009 refusing to consent for the provisions of initial services, noting that the IEP was not appropriate primarily because they already tried all those things and they did not work. The district knew that they were not satisfied with the prior CSE recommendation and there was zero change in the recommended program. T1010 Exhibit School Year Tuition Scholarship/Financial Balance Paid 2011/2012 J180 2012/2013 2013/2014

The balance of the balance of tuition had been paid T1014, but the scholarship is subject to reimbursement, should the parent’s financial position change. There is no Summer Camp following the 2011/2012 school year T1012, the student continued at K school for 2012/2013 and the parent reviewed J180 which is the tuition contract showingT1013. The witness reviewed J275 T1016 a letter dated August 22nd, 2012 advising the district that the student will be attending the K school for the 2012/2013 school year, requesting tuition for the 2011/2012, 2012/2013 school years, there was no response to said correspondence. The witness was questioned regarding Mr. P. head of school from K school’s testimony from the previous day regarding the K schools progress reports including the interim semester and end of the 3 trimesters for the 2011/2012 and the 2012/2013 school year. The witness remarked that the student’s work production had increased, his work production, behavior, his contact with staff, had improved. He had requested that the K school staff be very critical of the student T1019, but the student’s behavioral towards school was night and dayT1019. They would pick up the student on Friday night before the proctor study hall and return Sunday night before the Sunday proctor study hall, so the student would do homework with the parents at home. The witness further remarked that it was night and day, they would work on homework, he was applying himself 100 more T1020, and there was steady progress after getting minimal services from the district school the student was even talking about finishing high school t121. The quality of work was steadily improving. His attitude toward school had improved. In the 9th grade t1022 the student was very negative regarding the district and not because the student wanted to go to K school, plus he started to participate socially he was involved with soccer, basketball. The witness wanted to address the student’s IEP for the upcoming 2013/2014 school and he was asking the CSE for helpT1026. He asked for the CSE on March 13th, it was cancelled. There was a meeting scheduled on April 24th, 2013 that Dr. L. the academic Dean from the K school participated in by phone T1028. The program recommended by the district was the same as the year before T1030; the witness was reluctant to accept same since student would be going back to his old form. The witness discussed the CSE meeting T1032; they reviewed progress reports, evaluations of written text diagnosis from Dr. D. the diagnosis letter from Dr. D. The CSE did not feel that diagnosis would justify T1032 an LD classification and the only appropriate classification was based upon the student’s diagnosis BB had an observation at K school and wanted to implement some of those items, but it was left off the IEP, and the witness was told “they don’t put those things in IEPs” T1034. It was the same program without changing the teaching style, methodology or strategies. The witness reviewed J127 the IEP from the 4/24/2013 CSE meeting to which the parents objected to because it was the same services recommended as last time T1038. They filed J286 a letter of intent dated May 17, 2014because there were no changes from the May 21, 2013 IEP. The witness felt that everything fell on deaf ears, they recommended the integrated co-taught class with resource room and

RAW. However the explanations of co-taught class changed and that the special education teacher only provides services to those classified students taught in the co-taught format T1038.

The parents did not have much to say since there was no change and they wanted to hear what the district had to say but they were offered the same program T1040. The witness reviewed J86, the May 17th, 2013 letter to KB constituting the formal 10 day notice that the parents planned on enrolling the student in the K school for the 2013/2014 school year T1041. The witness felt that the student was improving at K school and making progress, he was recruited for the eye to eye program, even though was only 15 and not of the required 16, to help mentored student. And the T1045 student is currently doing well academically and socially making progress, but it is a constant struggle moving forward erasing bad habits, growing in self-advocacy and self-esteem.

The father was quizzed on cross-examination regarding the student deficits which include reading comprehensionT1056, putting thoughts on paper. ELA homework he would do with the mother. They would read passages. He would have difficulty grasping context and inferences, following instructions and directions regarding homeworkT1058. The witness acknowledged that he is not a teacher and only familiar with the WISC IV and WIATT 2 as a parent having gone through the process. It remains a focus turning the homework in on time howeverT1061, since 2010 there has been deficits in reading, writing, focus, and homework in school. At the K school issues included; completing tests and quizzes T1062.The father felt that the student was closing the gap between disabled and non-disabled peers in 2011/2012, 2012/2013 T1069, and felt that the student would regress at the district. The witness reviewed J76 the student’s progress report for the student’s 7th grade in 2012/2013 school year where the student’s grades improved from the 3rd to the 4th period in all content areas except for health careersT1070. However it was noted that the student’s final grade in math was a failing grade of 61 requiring him to take summer school T1071.( It should be noted that based upon review of J76, the physical education, the student scored 100, 77, 44 and 52 with a 68 final average; the student does not change for PE frequently. The witness also reviewed J85 the NYS assessment for the 2010/2011 for mathematics where the student scored a 3 T1072. The witness reviewed J122 the IEP from the April 24th, 2013 CSE meeting which recommended special class reading T1073, preparing the student for the 10th grade and the 2013/2014 school year and the progress report from D camp for the 5/6 gradeT1074. The student was familiar on the first visit to K school; the student went for the summer of 2010 but not 2011. He did well at camp and was approached with financial aid with no interest, and the K school the progress reports were sent and received with an estimate of the witness within a week. The witness reviewed J134 the interim report grade for grade 8 in 2011/2012 school year T1081, and it was reported that it was the student’s first year at K school, and in math it was reported that the student attempted to become the class clown T1088, father was concerned, was in contact with the teachers. He reportedly requested of the teachers to be critical and provide said reports to the parents. The father was also concerned about a lack of effort in T1089 math and history and the student came home most weekends and the father felt that the student’s efforts did not diminish and was consistent with completing homework over the weekends. Regarding history homework T1094, the witness did not see a change at home; he was still reluctant at times, the parents worked with the student to get the work done. The student was happy to be going to the 2010/2011 school year to K school because he was familiar with the K school from camp, but was shocked that it was more demanding than the camp, with a heavy emphasize academic rigor. The father acknowledged the comment that the student had settled down from the beginning of the year, but he has still yet to get motivated to do much work in the class. The father said there is constant effort to figure out the student’s behaviors, causes and solutions to curb that behavior. The witness also reviewed J137 t1087the interim grade report for January 18th, 2012 for the 8th grade half way through the first year at the K school. Math had a new teacher, the EW. The way the homework broke-down the student primarily did social studies, ELA and which they did during the weekends, there was some literature over the weekend, but the parents would leave some work for the proctor study hall on Sunday night T1091. The parents would tell the student that such effort was unacceptable T092 and there was an effort to keep the student on track. The father felt that the student ended the fall semester strongly. It was always tough keeping the student on track, adjusting his behavior. The witness also reviewed J138 T098the progress report from the end of the end of the 2nd trimester. The student was in pre-algebra and the student was often going to ACCO to complete his homework T1096. The teacher recommended a checklist so that he could bring all of his items to class. The witness reviewed Lit 8 report whereas the student did not follow all the directions, workers did not understand he did not ask for help. The witness reviewed J142 T1102the progress report from the end of the first year and the 3rd trimester for the 2011/2012 school year in pre-algebra in which it was reported that the student started the semester strong, he started submitting his assignments late and then not at all. EW would send the student to ACCO, and he would become argumentative and defensiveBT1105. The student did complain of loss of free time because he would rather be playing basketball. The witness indicated that they were always working on T1106 and medication and tailoring the dosage and he normally gets his medications in the morning. The student did have peaks and valleys and the father was not aware of any sulking and no physical signs. But there was no testing since 2012, the witness reviewed J144 T1112 the October 16th, 2012, 9th grade which was an educational report with dates of testing of March 15th and 16th, 2010. The father was concerned that the student was not getting on track; self-advocacy seemed like an important part. The witness also reviewed the progress reports from October 16th, 2012, he was failing behind in math, the concern was that he was not getting on track, self-advocacy was important and the student continued to make comments that were not always relevant. The student then became disruptive in science, he struggled with science, it seemed beyond his scope, and his teacher EW felt that the student could be disruptive in class. The parent was concerned that there were not sufficient consequences and need for behavior management with positive and negative reinforcements. The witness also reviewed J145 T1023 which was the October 16, 2012 interim report for the 2012/2013, 9th grade year of the student, which in mathematics T1113the student had a rough start and began to fail behind, in literature it was acknowledged that his class work was inconsistent and the father indicated that the math work tended to shift more toward word problems which the student had difficulty with. In regarding bio/scienceT1116 there were labs that needed to be done, but the fathers felt that it was difficult to do at home, there are certain gaps, but felt that they were closing the gap with a level of focus change there is interaction and the father was concerned about the vocabulary in bio/science

The witness reviewed J152 the Algebra spring report card 2013 indicating that he had it before the June 10th, 2013 CSE meeting, T1201. He did not disclose his concerns in the spring of 2013 T1203. The student was in the 5 day residential program because T1204. There was a minimal amount of class and homework on the weekends and the witness did not know if it was modified. The witness talked to the Bio teacher from K schools because the student’s work was not being done T1205. There was a scholarship grant and out of pocket expenses, there was a tuition payment plan, and there is interest if you do not make the payments T1206. The witness also reviewed J170, the witness was unsure of what was on page 2 of the email train.

There was a continuation of cross-examination of Mr. P who reviewed J153-13 and the witness was not sure about the plan for the IPad and usage in geometry T1236. The witness reviewed J154 which was 2 months after the start of the school and the student was still having problems with utilization of the IPad in class T1238. The witness also reviewed J140 WRMT2 the 2011/2012 and J150 WRMT3 2013/2014 testing. The word attach measures ability to read T1247 with nonsense word. Word identification measures words in isolation and sight words. The student’s word ID increased from a grade equivalent 7.1 in September 2011 to 7.8 in may 2012 in one year and then 6.8 5/13 T1249. The witness compared the Woodcock Johnson for the 2011/2012 versus the 2012/2013. The witness reviewed J150: the GORT V grade equivalent for accuracy in September 2012 was 9.0 and in May 2103 it was 6.7 indicating regression. With fluency grade equivalent he regressed from the September 2012 with a 7.0 to 6.7 in May of 2013 J140. With scoring of rate he progressed from September 2012 with a 5.2 to a 6.2 in May 2013 T1261. With the GORT rate and accuracy equals fluency. Comprehension measures the understanding of the content of the passage. Vocabulary is the understanding of a word in isolation. With comprehension grade equivalent, he went from 5.5 to a 5.8 from September 2012 to May 2013 T1263. With vocabulary, he was at the post high school level with the difference of getting a few more questions correct and may not reflect the student’s ability to do college level work T1265. It is harder to move from 7 grade to 8 grade or 8 grade to 10 grade than 10 grade to post high school T 1266. The witness reviewed J150 the Gates McGinity and the student progressed from a 7.8 to a 7.9 in grade equivalent in one year T1266. The witness reviewed J271 there was contact with DHK and KS on March 10th, 2010 T1268. The WRAT which measures word ID skills, real words in isolation, spelling and in 7 grade the student tested in mid-7 grade T1271. DHK is not quailed to give the WISC. The witness reviewed J279, J280, J281, and the student if successful in a reimbursement claim against their home district, the grant is reduced creating an economic incentive which the witness denied T1278, J282 and, J289. On redirect the witness was quizzed that the student was being instructed regarding the Orton Gillingham approach which does not rely on sight words. The tutors are skilled in Orton Gillingham training and decoding T1289. It is phonics based using decoding instead of word identification. A decrease is common with the Orton Gillingham approach because, it takes years to learn decoding and word attack and it takes a long time to work on parts of words. Once it becomes more automatic T1290 you rely less on decoding and read sight words without restrictions of decoding, decoding utilizes phonics patterns, encoding spelling and writing words T1291. The rate and grade equitant is sometimes difficult to compare. The witness reviewed J140 and J150 regarding why the student’s scores decreased in rate from 2012 to 2013. When he is receiving tutoring, the sight words component increases when first utilize the Orton Gillingham if you do not do it right T1289. With rate you must slow down reading, slowing down using phonics skills and phonic T1290. With the student’s comprehension T1290 comparing grade equivalent in J140 verses J150 in September 2011 score was 5.5, May 2012 was 5.8, September 2012 was 6.9, May 2013 was 7.8 and the question is when there is an immediate need to decode and decode, it takes a lot of tutoring, the student does better when applied phonics skills but my tend to pay less attention to the passage T1296. There is tutoring 75 there is different levels, reading in Orton Gillingham for a year decoded very well there was a lot of focus on comprehensive and vocabulary because he is reading and it becomes more automatic in general doing what supports more decoding. The witness reviewed DHK’s report whose testing is more compatible for and starting testing for it in 1940. She was a pioneer with the Orton Gillingham approach had a fellowship through the academy trained others throughout the world T1297 utilizing the Orton Gillingham methodology, worked on executive functioning T1298, and organizing reading and sequencing. There is no formal or technical approach more effective providing strategies to the delivered and working needed skills while at the K school T1298. The Orton Gillingham approach uses tutors 1:1 with a diagnostic proscriptive approach daily for example if he needs more with vowels, it is harder with suffixes, or needs extra time T1299. The student gets accommodations with the learning style, helps with accommodations from teachers with decoding and encoding skills, and modified assignments T1301. Differentiated instruction does not mean lower standards but assessment at different stages of the student as he acquires knowledge of the content area T1301. Student says an adjustable form of written expression, writing skills, and student has baggage struggling in school where his learning style was not understood the student loses confidence and that is where the troubling behaviors come from T1304. It takes years of study to overcome the old learning style. The witness was quizzed on regarding ACCO which is afterschool program for the student to finish assignments, it is not detention because detention is punitive ACCO T1305 is different and at different times then detention. Regarding the Orton Gillingham instruction, the WRMT decoding goes down, if a student does not get proper OG instruction it is not unusual for it not to increase T1308. With student’s with a significant deficits; it is not uncommon that word identification stays same or goes down. It is very hard for students that are taught sight words to teach them to break down words phonically, and it takes time than knowing a few sight words T1309. The witness reviewed J148.

The next witness was JE has a BS in English and MS in reading and language she received her BS in 2003 and MS in 2009 T318. She participates in professional development which occurs 1x per week every Wednesday at K school T1319. I She is an O/G trained tutor giving Orton Gillingham tutorial 1x, she was a literature teacher for the 10, 11 and 12 grade, she is a testing coordinator, literature chair and before the K school she worked at the summer camp T1324. The prerequisites are a BS, associates in training the Orton Gillingham approach, 70 hour course instruction plus 70 ours level certification level T1321 for those providing instruction. She was a college advisor tutor from 1999 at KM taught tutoring from 2003, and in 2009 was a teacher. The witness indicated that she is very familiar with the student she sees the student every day T1325. She was a dorm head, they wake-up help get out the door do meals and assignments, do study halls, and her husband is a tutor T1323. With the student they had to start with the basics and work from the bottom up T1324. They used the whole language approach, whole language immersed in the program; break down into very small segments. The student’s 2011/2012 school year was language training 1:1 for 45 minutes with a tutor research program based utilizing the Orton Gillingham pieces T1325 in isolation than translate the word alphabet phonics and syllables T1327. The advisors seek generalization of skills. The tutor is 1:1. There is writing vocals, writing unfamiliar words, sentence structure. The student has started a level 2011/2012 school year basic generally working on language, spelling, common language phonics rules in the 2011/2012 needed Orton Gillingham 1:1 T1329. The witness discussed the student’s behaviors and emotions they are typical frustrations from a lack of competency because of a reading disorder, not unreasonable in the student’s first year, but he is always polite and courteous T1330. The witness reviewed J135 the November 18th, 2011 when the student was in the beginning stages of O/G but was working well with KE T1331, he was successful with basic concepts; for example 2 syllable words, 2 sentences very simple, 2, 3-4 different expressions in spelling. The witness reviewed J142, J138 the student struggles with writingT1338. They would work on tutorial passages; they work during tutoring because it takes a lot to translate to the classroom, i.e. the teaching methods of decoding. In 2011/2012 with areas of deficits, the student improved in all areas, improved in all areas and comprehension and in spelling T1341. The student needed to continue support to work on fluency; in word decoding and strategies because he was below grade level for comprehension and spelling T13341 and to stay afloat with more complex materials at higher grades T1341. 2012/2013 language tutorials spiral review for pushing forward with suffixes which are more advanced T1342. Phonics build off of previous year moving forward with1:1 tutorial specifically designed and tailored to meet the student’s needs. There are modifications and accommodations provided though assistive technology T1343 for 45 minutes per day which are built into the schedule. The student in 2012 academically had low self confidence and struggled in academics but if he had to be he could do more advanced materials T1344. But regarding behaviors there was some avoidance with behaviors when the student struggles he would find ways not to do the writing component avoiding strategies tools T1347. They worked on writing paragraphs bodies, introductions, and concluding paragraphs, fill-in the middle, small manageable pieces T1348. Regarding weekend homework they would try and not overwhelm the student breaking down task into smaller manageable pieces T148, through small steps with his writing. The student’s strength is reading, he would finish a book in a week once he found books that he liked T1349 i.e. graphic fictions. He could connect and comprehend T1349. His biggest weakness in the 2012/2013 school year was the primary stages of writing; he can do it orally T150 but it was difficult to translate to paper. They use simple sentences and they continued to work on decoding in isolation and then in content, isolation then generalization and picking suffixes T1351. He struggled with writing strategies; the Orton Gillingham worked with isolation word writing expression, and sequencing T1352. The tutors with literature teacher instruct on how writing works, how to go to a level of writing. Language transition aspects filled in vocal words beneficial in contexts, real issues. The witness reviewed J125 the 05/13 language training after a year of tutoring; an example of student’s language training was with the student’s comments enjoys current events T1356, using Orton Gillingham strategies were successful comments because he liked the material 1357.Regarding the level of performance 2012/2013 beginning to end more advanced work with 4-5 syllable words T1357 which he could not do at the beginning of the year but he still lacked certain elements struggles with generalization T1358. Regarding his 2012/2013 language ability: comprehension was a 33 percentile , vocabulary was 35 percentile, J150 September 19th, 2012, May 15, 2013 comprehension went from 30 to 33 percentile, vocabulary form 37 to 36 but his is typical in transition to post high school T1359. with a notation progress to keep up previous post-test more challenging and post, WRT 55-26, word attack 25-53, generalization and nonsense words, hard with Orton Gillingham. Literacy teacher 2013/2014, literacy for the 2013/2014 year language training every day for 45 minutes 9 students including the student T1363. In literacy class they attack unfamiliar words decoding and read fluently. The standard 10th grade curriculum for 2013-2014 is Romeo and Juliette, and Animal Farm T1363. Three students were engaged; he was distracted than was turned back to task. In the 2013/2014 school year he performed in the literature class with more confidence but still struggled with tasks, changes 50 on paper, don’t have piggy, knew how to do it last year and can express in self in writing, self confidence. His vocabulary was getting better and he was not avoiding, asks and is open about it and the student completes if he can, needed extra work, completes very well.

Attention, focus and mood over anxiety type information can comply, but work this year before is compared with homework and classroom work last year improved. The biggest weakness was writing because it took a great deal to express himself in a written form. Classified as information more and more got better but need some assistance, the student get data out, find from story 2-3 pages. The witness reviewed J154 progress reports T1372, language training fall of November 2013 works on basic phonics concepts, improve reading and accuracy. The witness reviewed PLPs J189 student still needs structure. The witness reviewed J288 and J289 royal literature 2 with JE, the student often needs another day to get the work done, finishes 24 hours or by end of day, able to hand in, strong grasp of material, makes comments and takes notes, looked down to writing main ideas, writing improved detailed complex sentences deeper, getting a lot more out of it. Regarding behaviors there were no maladaptive behaviors in the residential setting. All the students get up between 5:30-6:00 to promote reading; they read silently, then dinner, then 90 minutes with homework and his weekend assignments. On cross the witness reviewed J140 and J150 the WRMT T1390 an average score is 90-110 and 25 percentile to 75 percentile with standardized scores based on national norms with age of test taker taken into account. The TWS 4 with bell curve 90-110, 25 to 75 percent standard based national norms T1391 the GORT IV rate decrease. Accuracy increases, oral WJ the student Orton Gillingham was oral standard scores each portion 7-13 standard deviations 25-75 percent T193. Woodcock Reading Mastery Test same would apply T1395. GMRT4 was a test based on national norms. The witness reviewed the WRMT from September 2011, GMRT raw scores indicate a post high school level but the witness did not believe it was an accurate test of vocabulary skills, but reflected what his scores were. Language training suffered because the student struggled with biology; teacher was difficult not understanding the student it affected all his classes T1413. He back tracked it had an emotional impact, decreasing confidence, did not want to take an academic risks, the biology teacher want him to remember bones T1408. The student must complete the curriculum to graduate J152. The student needed Orton Gillingham in math; the student struggled with math with understanding concepts because of the language. Effort and emotions at times affected performance when frustrated, pulled back, but no formal plan or strategies. There were reported talks, make the student understand, help concentrate with classroom teacher, minimum effort strategies T1422. J153, October 2013 interim report plan, the student is class clown, J289 no formal plan team meetings at the end of the term.

District Issues

The district argues that the student’s classification is in dispute with the district classifying the student as and the parent’s seeking a classification of learning disability. The student attended the district up to and including the 7th year the 2010/2011 school year. The student was unilaterally placed at the K school through 2011/2012, 2012/2013 and 2013/2014 and attended their camp for the summers of 2010 and 2011. The parent’s Due Process Hearing Request is dated September 24th, 2013 received on September 27th, 2013. During this student’s 6th grade, 2009/2010 school year he struggled to complete assignments and was involved in disciplinary behaviors. In the spring of 2010 a referral was made to the district CSE which the school physiologist DO conducted psycho-educational evaluations. The student exhibited behaviors and a behavior plan was put into place. She administered the WISC IV and the WYAT II and the district contends that except for spelling which is in the below average range, the testing indicated that was the student’s only relative weakness. The district’s administered the WYAT II and the student was placed in 61 percentile in Math. The district’s pathologist administered the SELF IV and concluded that the student did not have any significant difficulties with language. On May 21st, 2010 the district CSE determined that the student was not eligible for special education services. The student when enrolled in the K school’s summer camp the student made some improvement but regressed for the conclusion of the program. During the 2010/2011 school year or the last year at the district the student continued to struggle. During the first and second quarters the district developed a 504 accommodations plan. The student was placed in the reading and writing lab, RAW in December of 2010. The district’s RAW teacher’s reports reveals progress, the student performed consistently well from December 2010 through June 2011. After the development of the 504 Plan there were weekly reports which reveal a pattern of moderate but steady progress. The district claims that BM the student’s favorite social studies teacher noted that the student’s behaviors were typical of 7th grade in and upon a review of the student’s yearend report card the student’s grades improved in English and social studies from 3rd to 4th quarter and in every subject expect for home and careers. It is more accurate to review the RAW scores which indicate consistence across the board is more appropriate then looking at the Grade equivalent levels and the ranges associated with the State assessment since the State made the State assessments more rigorous. Regarding the 2011/2012 school year the district noted that the K school’s school year was only 150 days as opposed to 180 school days, a school day is 90 minutes shorter and they lose 6 instructional Thursdays in the winter to allow for skiing. The K school utilizes proctor study halls, but the school does not have any school counselors or psychologists on staff and the parents would secure outside counseling. The student continues to exhibit behaviors as the class clown, disturbing the class and in mid October 2011 the K school people failed to identify specific strategies to address these behavioral issues and these behaviors occurred at the K school in math, history and literature. In

January 2012, 4 months since his 1st K year school the student was still exhibiting behaviors with peers and failing to complete homework and there is no evidence in the records that the K school program was being modified to address the student’s needs. Ironically the district contends that the student’s math teacher came up with a system to turn in assignments over time and that he would hand them in and it was successfully short lived and he regressed to his old habits. The district contends that the ACCO program is a kin to detention because it is a consequence. The student rushing through exams occurred without any evidence of intervention by K school and there was no provided for the 2011/2012 school year. During the 2012/2013 school year the district conducted new testing, psychological, WISC IV and the Woodcock Johnson A, the WYAT II with similar scores to the 2010/2011 school year, but classified the student as based upon the classification. The district offered an integrated co-taught program with sufficient staffing and proper student/teacher ratios with resource room 5:1 ratio. No one thought that the student required a self-contained program. The district argues that in 2012/2013 that the parents requested an independent evaluation they approved same with a dollar cap and the parents choose not to undertake the IEE. During the 2012/2013 school year the 2nd year at the K school the student was reported to be distracted by use of his IPad with no strategies, behaviors or plan to limit and funnel and said appropriate use of the IPad. On January 13th the student was still failing to turn in assignments and was placed in ACCO by the end of the winter trimester the student was still submitting incomplete assignments and was an occasional distraction in class. In 2013 the student failed to complete math assignments on time and the student only had limited amount of success and regressed to his old habits and there are no records of any strategies used by K school. The district contends that during the 2011/2012 and the 2012/2013 school year and notwithstanding the testimony of K school there was no limit progress. When the student made no progress in the TWS 4 in the 2012/2013, the GORT IV and the GORT V are percentiles based upon nationally normed on the student test takers ages and the student regressed in fluency and accuracy in regard to the 2013/2014 school year, this CSE maintained the student’s classification of to address the student’s behaviors in the classroom to refocus and redirection consistent with his disability. In 2013/2014 it was more the same the student still exhibited some behaviors even though his behavior was improving. The district argues that the student did not require special education services at the conclusion of the 2010/2011 school year and relied upon pre-referral strategies and response to intervention, that the student did not meet the criteria for special education classification and responded positively to the district’s interventions which included the 504 Plan, read team interventions and the RAW reading lab and that the student’s grades improved from in ELA and social studies the student made progress in general education curriculum. The district argues that it’s made its Prong 1 Burlington test for the 2012/2013 school year and that the absence of an FBA and BIP does not amount to a denial of FAPE during the 2012/2013 school year the district developed an appropriate special education plan and in light of the fact that the student only required special education services after completing a full year at the K school. Regarding the classification the district contends that is not required to classify the student in any particular category, as long as the student is receiving FAPE. The district correctly noted the medical or clinical diagnosis of but that does not automatically does not classify the student for learning disability, The district argues that unless the district conditions the student receive FAPE on a particular classification and there is no evidence in the record that the district had done this, and a dispute regarding proper classification is insufficient bases for relief. Furthermore K school inability to manage the student’s problematic behaviors necessitated special education programming or classification. Also regarding the district’s special education program for the 2013/2014 school year, the IEP was appropriately tailored to address the student’s needs and in light of the lack of progress by the student at the K school for the past 2 years and argues that K schools own behaviors/attention scales justify program for 2013/2014 school which focuses heavily on instructional time behaviors. The district argues the parent’s obligation under the Prong 2 the Burlington test, they failed to deal with the issues such as distractibility or inattention as a result of the program is inappropriate and they cannot just blame the student’s baggage from the prior district since the K school never devised any strategies or goals and that the student’s operandi to become entertaining instead of doing his work and that the student’s grades in math and literature regressed from the beginning of the school year. The district goes on to argue that during the 2012/2013 school year the K school did not appropriately address the student’s deficits in terms of his classroom behaviors and in assignment completion. There are specific goals to address the failure to complete homework and there is no formal behavioral plan and to address the student’s behaviors that the science teacher failure to understand this student, negatively impacted the student’s performance in science but in all academic classes. Furthermore the student does not need a residential placement just to receive grade consequences for failing to turn in homework.

The district argues K school fails to provide competent instruction for the curriculum the student was required to complete and especially Ms. W whose failure to understand the students at K school impacted the student performance across the board. The student failed to make any measured progress in areas of reading and writing, despite the parent’s insistence that those were areas of his deficits. The district relies up the scores in the GORT V, write fluency and accuracy, spelling, WISC IV word identification, WMRT in comprehension and vocabulary and GMRT 4; in over a 2 year period of time there is regression and lack of significant progress indicating that the K school is inappropriate. The district argues that the parents have failed to met their burden under the Third Burlington Prong and that the parent’s failed to disclose additional testing after demanding a 2nd CSE meeting in June of 2013. Also that the parents failed to provide 10 days notice for unilateral placing their child and finally when the district offered to conduct an independent education evaluation with responsible restriction as allowed under law, by paying up to $ .00 based upon the fact that the district had previously conducted research into the cost of IEEs and the parents did not provide any evidence as to the cost of the evaluation by their evaluator. Parent Issue

The K school offered student instruction specifically designed to meet his unique educational needs as an appropriate placement for the student. The parents must show that the K school was appropriate to meet the student’s educational needs, if it provides instruction specifically designed to meet the student’s unique needs of any handicap students. The parents did not need to show that the school provides every special service necessary to maximize the student’s potential. Private school placement is required to met the States education standard nor does it need to be an approved school the issues with the placement reasonably calculated to enable the student to receive educational benefits. The K school specializes in educating students with At the K school the student received small classes, tutoring, 1:1 reading, writing, and spelling instruction.

The parent argues that all three prongs if the Burlington/ Carter test have been met and the parents should be awarded tuition reimbursement for the 2011/2012, 2012/2013, 2013/2014 school years. Also the parents argue that the district failed to offer the student FAPE for the 2011/2012, 2012/2013, 2013/2014 school years. For the following reasons: Procedural violations by the District rose to the level of a denial of FAPE. The district failed to timely locate and identify the student as a student with a disability resulting in a Child Find Disability. The District failed to properly and/or sufficiently evaluate B.W.’s maladaptive behaviors and failed to develop an IEP reasonably calculated to confer educational benefit. The District failed to timely and appropriately respond to the Parents’ request for an IEE which prevented the parents from meaningfully participating in the CSE process. The District failed to properly classify B.W. The District failed to offer an appropriate program and placement in the least restrictive environment. The District failed to provide specially designed instruction and related services based on peer-reviewed research. The District failed to individualize instruction to address B.W.’s unique needs. B.W. made no more than trivial advancement while being educated in district. K School offers B.W. instruction specially designed to meet his unique educational needs and is therefore an appropriate placement for the student. K School utilizes the Orton- Gillingham approach, a systematic, peer review approach to reading. The student has made measured progress wile at K School. The residential component of K School is necessary and appropriate. The equities weight heavily in the Parents’ favor. The Parents timely notified the District of their concerns over the appropriateness of the student’s IEP. The Parents made B.W. available to the District for evaluations. B.W’s Parents provided the District with the requisite 10 day notice. Parents are entitled to tuition reimbursement.

PROCEDURAL VIOLATATIONS AND A DENIAL OF FAPE

The applicable standard was stated recently in SRO 11-011:

“Applicable Standards…it is well settled that a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. Of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 C.F.R. § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). “

FUNCTIONAL BEHAVIORAL ASESSEMENT

It is uncontroverted that the district failed to perform a functional behavior assessment for the student, notwithstanding the student’s ongoing behavioral issues dating back to when the student would disrupt the class, would be removed from the classroom, would be sent to the office and would receive detention. It is also uncontroverted that the district’s staff was not able to identify the antecedent causes or triggers to said ongoing behaviors. In addition the stated reason for the referrals to the CSE by the parents dealt with the student’s behaviors as well as the student’s academic difficulties in particular reading, writing and math; J7 dated 4/11/07. The parent’s requested weekly progress reports to be delivered on Friday to facilitate a meaningful rewards/punishment program to be implemented by the parents over the weekend. The receipt of said progress reports on Monday was not as effective according to the father since it resulted in punishment being delayed, and was not as effective as if the punishment was close in time to the alleged misconduct or behaviors. The parent testified the teachers they did not appear to be fully supportive of the said plan and the enthusiasm dwindled over a period of time.

The school psychologist testified that the disciplinary action imposed upon the student being removed from the classrooms, sent to the office and given detention was within the expertise of the behavioral expert employed by the district. Said behaviorist did not testify in this proceeding nor did the witness’s explanation as to why the particular school’s psychologist did not follow through raises concerns about the thoroughness of the evaluations conducted on the student.

Section 200.22(a) (3) states:

“(a) Assessment of student behaviors. For purposes of this section, an assessment of student behaviors shall mean a functional behavioral assessment (FBA), as such term is defined in section 200.1(r) of this Part.

(1) A FBA shall be conducted as required in section 200.4 of this Part and section 201.3 of this Title.2) The FBA shall, as appropriate, be based on multiple sources of data including, but not limited to, information obtained from direct observation of the student, information from the student, the student’s teacher(s) and/or related service provider(s), a review of available data and information from the student's record and other sources including any relevant information provided by the student’s parent. The FBA shall not be based solely on the student’s history of presenting problem behaviors.

(3) The FBA shall provide a baseline of the student's problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day and include the information required in section 200.1(r) of this Part in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement.” AGuidance on Functional Behavioral Assessments for Students with Disabilities Memo July 1998, Components of a Functional Behavioral Assessment.

”It is the responsibility of the CSE to ensure that functional behavioral assessments, where appropriate, are conducted and reviewed to:

* identify supplementary aids and services, modifications and/or related services appropriate to address the identified behaviors to promote a student's involvement and progress in the general curriculum.

* determine a student's eligibility for special education services.

* develop the IEP which includes behavioral goals and objectives and positive behavioral supports and strategies.

Section 200.22(b)(i) states the following:

“(b) Behavioral intervention plan. (1) The CSE or CPSE shall consider the development of a behavioral intervention plan, as such term is defined in section 200.1(mmm) of this Part, for a student with a disability when:(i) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions;

I find that the district failed to conduct a FBA for the student and failed to properly implement an appropriate BIP. It should also be noted that I further find that the school psychologist contrary to the stated job description in the district 2 year plan J287 job description handbook inappropriately relied on the behaviorist and improperly departmentalized the role of the school psychologist and the role of the behavioral specialist. The school psychologist in performing a psycho-educational evaluation indicated by testimony that she reviewed the student’s file and reviewed the documents contained therein. The witness’s recollection of exactly what she reviewed was hazy as well as the specifics of what was discusses at the CSE meeting, but nonetheless the school psychologist failed to itemize what documents she reviewed as part of her preparation of the psycho-education evaluation. As a result of that method of preparing a psycho-educational evaluation it is difficult to analyze the psycho-educational evaluation, it would be difficult to critique the psycho-educational evaluation and limited the parent’s ability to seek independent psycho-educational evaluation if for example, certain items were not reviewed. It does not appear that physical examination was conducted, performed or submitted as part of the student evaluation. There were questions whether the social history was submitted or performed and the parents testified that they did not complete or submit one thereby resulting in an incomplete, inadequate or nonexistent social history. The parents submitted reports by Dr. D. P-A dated 12-06-2010 and P-B dated 1-10-2012 evidence that the doctor’s diagnosis of the student with The parents also submitted DHK’s educational evaluation of the student indicating that the student had a dyslexic disorder. These items were not listed under the school psychologist’s psycho-educational evaluation as a result it is difficult to ascertain whether they were reviewed and what was relied upon in preparing the evaluations.

INDEPENDENT EVALUATION

It is uncontroverted that the parent’s requested an independent education evaluation and when the district failed to respond they placed a 2nd request for educational evaluation. Two months after the 2nd request the school district responded approving the independent evaluation notifying the parents that the district had established a cost containment criteria of no more than

00 for the independent education evaluation. The parents contacted 3 evaluators; the lowest priced evaluation was .00 more than the approved amount. The district did not commence an Impartial Hearing to oppose the request by the parents for an independent educational evaluation. The district relies upon the Federal Regulations 71 FED 46668-9-9-0 and the comments thereof which is referenced in SRO 11-122 FN 12

“12 The Analysis of Comments accompanying the federal regulations implementing the provisions for an IEE state that "[a]lthough it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency's cost containment criteria" (Independent Educational Evaluation, 71 Fed. Reg. 46689-90 [Aug. 14, 2006]).”

Said analysis indicates that it is appropriate for the public agency to establish responsible cost containment criteria which would apply to public agencies as well as personal used by parents. The public agency would need to provide a parent to the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside of the agencies cost containment criteria. The cost containment criteria were developed as testified to by the witness based upon research performed over a 3 county area several years ago. The parents contend that the cost containment criterion is not reasonable in nature and that there were not evaluators who fit the cost criteria that they contacted. Thereby preventing the IEE or requiring the parents to contribute to the cost of the IEE at public expense. The district did not provide the opportunity to the parents to provide to justify the selection of their evaluator and that there are no independent evaluators who would be available within the cost containment criteria. The district’s cost containment criteria does not and is not limited to any particular type of evaluations or qualifications of evaluators performing and evaluation in the area of suspected disability challenging the district based evaluation and nor does it factor in the availability or the lack there off, nor does it factor in that any evaluators within the student’s particular needs would require a higher level of expertise and with a limited amount of evaluators and a higher cost than other types of evaluations. A review of SRO decision 11-122 which states

“A parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn.

2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R.

§ 300.502[b][2][i]-[ii];

The district failed to notify the parents that they had an opportunity to justify a selection outside of the cost containment criteria, the district also failed to initiate an Impartial Hearing to show that the school district evaluation is appropriate or the evaluation by the parents does not met their criteria. As a result I find that the district failed to establish reasonable cost containment with flexibility sufficient enough to accommodate specific narrow focused evaluation, failed to take into account factors such in inflation or adjustments since the survey was preformed years ago. Also I find that the district failed to initiate an Impartial Hearing to defend their initial evaluation or to contest the parent’s independent education evaluation as failure to meet the school district’s criteria in which it would include the cost containment criteria.

FAILURE TO PROPELY CLASSIFY

The parents contend that the district failed to properly classify the student as part of its claims that the district and its Procedural Violations resulted in a denial of FAPE for the student. The parents rely upon the definitions of The student was classified based primary upon the medical diagnosis of and the student’s behavior at K school. The district’s and its CSE failed to recognize the student’s deficits in math, written expression and reading. The Learning Disables classification is defined to include “…a disorder ….which manifests itself in an imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations …. The term includes such conditions as …….. . The district’s staff and witnesses in unison testified that the student was not within the definition of due to the fact that he was scoring within average ranges in terms of cognitive functioning. The testimony is clear that the student exhibits patterns of behaviors acting out, task avoidance, disrupting the class and the witnesses were unsure if these behaviors were rambunctious or because the student struggled with academic components of the district’s academic program. The district did not perform an FBA, BIP and his IEP did not indicate that the student needed behavioral strategies and the district contends the classification utilized by the CSE and recommended by the CSE did not deny the student services and it does not have a barring upon delivery of FAPE. Nonetheless it cannot be denied that the student’s difficulties of attention and focusing, following directions go and hand with the student’s imperfect ability to think, speak, read, write or do mathematical calculations associated with learning disability. As a result I find the district should have classified the student as a multiple disabled on the basis of criteria and criteria. However this IHO conceded that the classification and the classification do not result in denial of FAPE unless it was utilized to eliminate, deny or avoid delivery of services. As a result I find that the district’s failure to classify the student as multiple disabled with OHI and LD criteria did not amount to a denial of FAPE. The parents argue that the district violated their Child Find obligations.

The SRO in 13-325 FN 22 stated

“The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446.

F.3d 335, 347-48 [2d Cir. 2006]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008], aff'd, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz, 307 F. Supp. 2d at 400 n.13). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children

(Application of a Student Suspected of Having a Disability, Appeal No. 10-009; Application of a Student Suspected of Having a Disability, Appeal No. 09-132; Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41). Here, there is no evidence in the hearing record that the district failed to have procedures in place to recommend students it suspects of being eligible to receive special education programs and services to its CSE for an evaluation and that district staff failed to follow these procedures.” Similarly in the case herein the there is no proof that the district did not have procedures in place to identify, locate and evaluate the procedures. The parents’ primary grievance is that the district failed to properly evaluate the student. I find that the district did not violate its child find obligations.

The cumulative effective of these procedure violations lead to a denial of FAPE during the following school years 2010/2011, 2011/2012 and 2012/2013, and 2013/2014, and I so find

PRONG 1- 2011-2012

An analysis of the appropriateness of the district’s 2010/2011 is necessary since it was the last pragmatic year at the district and there was no indicated that the program at the district for 2011/2012 would be any different. The student’s program from the commencement of the school year until the CSE 504 meeting is controlled by the CSE meeting of March 2010. The student was tested and the results were reviewed by the CSE meeting it was determined that the student was not eligible for special education services. The testing however established the student’s PLPs as a starting point for the delivery of services where the district failed to provide FAPE during and including the summer of 2010 as part of the 2010/2011 school year. Nonetheless the district contends that the evaluation of the student and testing of the student included results administered from the WISC IV and the WIAT II. The district relied upon its testing of March of 2010 and said results were interpreted as the student being average with the exception of spelling in which the student scored in the 13th percentile. However a closer review J44 and the scores of the WISC IV reveals a scattering of scores and a top score in the 50 percentile for perceptional reasoning , 42 percentile in working memory, 39 percentile in verbal comprehension, 34 percentile in a processing speed, with a full scale IQ of 39 percentile and a composite score of 86. With the academic testing J44 the WIAT II the student revealed a scattering of scores with a high in reading comprehension of 66, written expression 63, pseudo decoding 45, reading composition 39, word reading 30, writing composition 30, and spelling of 13. The administrated the CELF 4 and concluded that the student did not exhibit any significant difficulties with language skills. The district relies upon J46, the speech/language pathologist report for any evaluations that were done March 24th, 2010 which is a summary without any realistic scores or composites or subtests. The conclusion was that the student’s cumulative score was above grade level and he did not need any further diagnostic testing at this time. This does not explain the scattering of scores with spelling down to a 13 percentile. Although the district relies upon the report from DHK, exhibit J271 which reflected that the student had scored at the WRAT the mid 7th grade level that the district fails to identify that the student’s spelling was at the mid 4th grade level on the Morrison MaCall, also his errors reflected both phonological weaknesses and a lack of knowledge of spelling conventions and that the student should be considered dyslexic. The district also indicates that during the student’s participation at the K school summer camp at Camp D the student scored in the average range going into the program but regressed from the 20th to the 17th percentile. It is ironic to note that the district points to this as an indication that the Orton Gillingham approach was detrimental to the student, however the specialized reading instruction was provided to the student even with the additional services the student’s skills were not keeping pace with any advancement of level of skills as work spiraled through the progression of grade levels. In review of J60 the 7 grade progress report dated November 9th, 2010 it was reported that in art the student had social concerns that were more important than school work; in English he was not very consistent; in health it was reported that he frequently cannot work quietly; in home and careers there was poor self-control; in math he was not consistent, in science there was inconsistent progress; social studies he was easily distracted. The 504 accommodation plan in itself references the fact that it is based upon a evaluation dated March 24th, 2010, psycho-educational evaluation dated March 15th, 2010. The student had been in an inclusion ELA as a non-classified student receiving support in that environment, has trouble with writing , was reluctant to read and write, and going to a private tutor to remediate his reading and writing skills. The parents had requested that the teachers check to make sure that the student copies the homework assignments into his planner and the teachers keep in touch with them regarding the student’s progress. The student did not receive any additional support modifications or accommodations up until December 7th, 2010 when the 504 Plan was implemented. In reviewing J72 the 7th grade red team weekly progress reports dated December 17th, 2010 where the person reporting indicates the student’s progress as follows: in English the student was resistant to school work and written assignments; in social studies there was improvement the week of December 17th; in math on Friday he finished all his class work, in science his homework was only completed when given lunch detention, home and careers he pays attention in class, RAW has shown improvement over the last week consistently reading and is cooperative. The inference is that from September up until the week before the 504 Plan was implemented and the week after the progress reports reflect one week post 504 Plan there is no noticeable measurable difference and the student still is evidencing the same deficits and inconsistency and task avoidance. The district’s staff has failed to identify the causes of the inconsistencies and the antecedents or the triggers of the inconsistencies and as result I find that the district failed to provide FAPE from the beginning the school year in September 2010 through December 2010 the date that the 504 plan was implemented.

2010/2011 School Year December to May

The 504 Plan J61was implemented December 10th, 2010 however it does not recommend specific instructional services but provides for accommodations and modification. The support services provided in the section for program modifications /accommodations of supplementary aides and services include use of a word processor, access to a word processor for all assignments, use of a word bank for all written assignments ,and preferential seating toward the front of the room, use of a graphic organizer for writing assignments, and refocus and redirection. Plus there were testing accommodations: extended time, use of computer/ word processor to record responses, redirection and refocusing, language in directions simplified. The district contends if you review the progress reports there shows improvement as indicated by the January 10th, 2011 report which indicates that the student showed an improved work ethic in social studies, had a good week in science, he did his work in math, on January 14th he was improving and received a 74 in social studies. However in the January 28, 2011 report the Social studies teacher reported that the witness was growing extremely concerned with the student’s attitude toward school and reported that the student received an 85 even though he did not read the 3 days this week because he did not bring a book. In social studies on February 4th, 2010 the witness the student’s social studies teacher was growing increasingly concerned about negative behavior towards school, in math the student was still choosing when he wanted to work, in science he refuses to do extra work, in RAW there was no new grades. On February 18th: in social studies his work ethic was better, in math he was still chose when he felt like working, in science there was a great week academically, in RAW phone calls were made. On February 25th the student was fine most of the week in science and the student had done great in RAW. March 11th: in social studies he improved drastically but in English he was a constant disruption, he had to take a break outside of class which was to get the class under control; in math he tends to call out, but overall he continued to have good week; in science labs were done poorly. On April 1st the student had an 82 in social studies, in science a 55 on a chapter test because the student refused to do a portion of the test, in English his behavior improved. On April 8th: in social studies the student refused to do a chapter 10 test, in science the student only got a 55 on his folder. On April 15th the student was to finish a DBQ in essay class today and had a good week in science and RAW. On April 29th: In science he was doing well, in English he was doing well but refused to do ELA review work with the teacher, in math his attitude was poor, in science he got a 38 on a quiz. On May 6th the student had a good week in English, social, math, science and RAW. On May 13th in ELA he was doing well, in social studies had a strong effort, in math his behavior was not appropriate, in science he was assigned a lunch detention. On May 20th, 2011 the student was doing a little better in math, continuing to work hard in RAW, in ELA he needs to finish quiz but in English but doing well. May 27th the student was doing well in social, behavior continues to be good in English, struggled in science to stay focused, in RAW he finished his scoring reading.

The student’s biggest deficit and weakness was being inconsistent and the student’s major weakness was not addressed in the 2010/2011 school year and that the student continued to be inconsistent with good some days bad other days, but the bad behaviors continued. The district relies on the lexile scores in that the pre-test and post test scores and the student’s post test rate showed progress and improvement. However this does not show progress in the student’s areas of deficits; namely the word isolation attack skills, decoding skills, and by evidence of neither his spelling nor any progress in the writing deficits which the aforementioned weaknesses. As a result of the aforementioned, I find the district’s 2010/2011 program did not have provide FAPE and would not provide FAPE for 2011/2012 school year.

PRONG 2 the 2011/2012 school year

The district is critical of the K school’s schedule which is 150 days compared to the district’s 180 days and the day is abbreviated 90 minutes shorter than the district’s school day, plus there are 6 Thursdays in the winter time when there is no academic instruction due to the ski club. Regarding the student’s behaviors, the district was methodical in its review of the K school’s progress reports which reflect the student behaviors as being a class clown engaging in disruptive behavior in math, history, ELA and failing to complete homework, rushing through multiple exams. The testimony from Mr. P. was that the student’s avoidance and deflective behavior was a result of years of baggage acquired from the district as a result of the district failing to address the student’s reading deficits. The district’s 504 Plan provides for accommodations, preferred seating, refocusing and redirection which in the smaller class of 5-8 – 12 students and which can be more easily obtained and provided at the K school. The K school staff by virtue of its smaller teacher to student ratio has greater familiarity with the student is in a better position to refocus and redirect the student. The district was critical of the K school for not having a formal behavior strategy in place. Ironically the district’s CSE and psychologist are not of the opinion that the student did not need a FBA and no FBA was ever performed, nor was there any classroom observation at the K school with the exception of the one done in 2013. It cannot be disputed that the student’s behaviors have impacted his learning in being inattentive in class, missed or late homework assignments. Mr. P. testified that it is not unusual for a student to engage in some task avoidance and acting out in class. Based upon the reports from the K school the student’s behaviors have diminished in terms of frequency and intensity. I find that the student did make progress with the behaviors that impacted his learning.

Regarding academics the district challenged the academic progress the student made during the 2011/2012 school year, page 10 of the district’s brief summarizes the student’s classroom scores and reports which show progress from the Fall of 2011 through Spring of 2012 then encountered difficulties in the last half of the 3rd trimester however the student still maintained inconsistencies that existed when the student was at the district. The district also relies upon standardize testing preformed in the district September 2011, May 2012, September 2012 and May 2013, the progress over the 2 school years including 2011/2012 and 2012/ 2013 continued the same inconsistencies and progress which marked the student’s years at the district, however a review of the 2011/2012 scores and the GMRT 4 shows progress for comprehension , the GMRT 4 shows progress for vocabulary , the GORT V shows the progress in terms of grade equivalency for fluency and rate, SDMT 4 shows progress in the grade equivalent, SDMT 4 equivalent for computations shows progress in grade, SDMT IV total shows progress percentile from 30% to 32% grade equivalent from 6.5 to 7.5, the TWS 4showed progress, the Woodcock Johnson 3 was not performed, the WRMT 3I word attack showed progress in both standard score percentile and grade equivalency, the WRMT word identification showed progress percentile standard score and grade equivalency. The parents contend that the student progressed in areas most crucial to remediating the student’s dyslexic reading patterned and namely the student showed progress from a 36 percentile to 39 percentile in the word identification reading words which become increasingly more difficult, areas of word attack, decoding nonsense words from 38 percentile to 50 percentile, in the GORT reading test from the 16 percentile to the 37th percentile, accuracy the student remained at 35 percent. In addition the parents argued that the student gained content knowledge while attending the K school. As a result of the aforementioned I find that the student obtained meaningful progress while at the K school during the 2011/2012 school year and that the K school program was appropriate for the student especially in areas of the student’s academic deficits. And furthermore the district is critical of the student in certain areas that he achieved less than a year’s growth however when the student initiated his enrollment at K school he was several years behind and several areas.

PRONG 2 the 2012/2013 School Year

The district CSE met May 18th 2012 reviewing the progress or the lack of progress the student made at the K school and based upon the student’s lack of progress and behaviors felt that the student should be classified as based upon his diagnosis. A review of that IEP reveals the following: a review of the CSE’s meeting May 18th, 2012 recommendations creating the IEP for the 2012/2013 school year recommended integrated co-taught services 5x weekly for 42 minutes for 3 content areas plus resource room 5x weekly for 42 minutes in the 5:1 ratio, relied upon the Woodcock Johnson test result of March 16th, 2012, the WISC IV from March 15th, 2012 and the integrated co-taught class was for ELA, social studies and science. The IEP reflects that the student does not need a behavior intervention plan or other strategies to address behaviors that impede the student’s learning or that of others, nor does the student need a behavioral intervention plan which appears to be inconsistent with testimony of the district’s witnesses that the basis for the student’s classification of behaviors including avoidance, diversion and acting out. The IEP provides accommodations, modifications including written assignments modified, use of a word processor, refocus/redirection, use of a graphic organizer and special seating arraignments.

In reviewing the present levels of performance it was reported that the student has strengths in math, oral reading and comprehension, weakness in written expression, organization and attention/focusing and work completion in terms of social development the student was well liked by his peers and he seems to be increasing his efforts in classes. The student has a good attitude and is willing to learn but the student does need to continue to work to stay focused in class. The student’s physical developments are within his age appropriate ranges, the student does need the services of a special education program to met success in the general education environment, needs support in ELA, social, resource room and moderate support in written expression. The student has a moderate delay in attention skills which interferes with the student’s participation in age appropriate activities.

The program does not recommend any specialized reading instruction. The RAW program does contain general education students and is not a special education service. It should also be noted that the student had progressed to a point where he was no longer being removed from class. The testimony was supported by the classroom observation in 2013 and on April 12th, 2013 the student engaged in some task avoidance but was quickly refocused and redirected that the teacher to the content at hand and the avoidance was initially in the commencement of start- up of the days instruction and lesson, which is progress from earlier where the student would be disruptive to his peers and others. It is also ironic that the district is critical of the student’s lack of progress academically and behaviorally even though the district’s CSE did not recommend a behavior intervention plan and that the district disputed the student’s the student should not be classified as learning disabled because cognitively he was in the average range. The district is critical of the student’s academic progress during his 2012/2013 school year. in referencing the chart compellation from the district’s brief comparing the 2012/2013 scores the GMRT IV comprehension the student progressed 6.9 grade equivalent to 7.8 grade equivalent and the GMRT IV vocabulary the student regressed into the 2012 but progressed from 7.8 to 7.9 during the 2012/2013 school year. Regarding the GORT V accuracy the student regressed from a 50 percentile to a 37 percentile and grade equivalent of 9.0 to 7.4, in the GORT V fluency the student regressed from a 37 -25 percentile from 7.0 -6.7, in the GORT V the student progressed in grade equivalent of a 5.2 to a 6.2 with a SDMT V the student for application the student progressed grade equivalent 8.2 to 9.9, SDMT compilation the student regressed going into the September 2012 but progressed with a 4.4 grade equivalent to 5.4 during the 2012/2013 school year, regarding SDMT IV the student progressed from a 19 percentile to 30 percentile with a 5.7 to 7.9 grade equivalent and the TWS IV there was no progress based upon grade equivalence nor was there any progress in May 2012 to September 2012. The Woodcock Johnson III the fluency the student progressed from a 6.7 grade equivalent to 8.5 grade equivalent, the WRMT III the student progressed from a 5.8 grade equivalent to a 10.2 grade equivalent, in word identification under the GRMT III the student regressed from a 9.7 to 6.8. upon careful review of the student’s scores indicate a decrease between the May 2012/September 2012 and the district criticizes the K school program for said regression however the district’s IEP from the May 18th, 2012 CSE meeting does not recommend extended school year services. As a result of the aforementioned I find that the district’s 2012/2013 IEP did not afford the student an appropriate opportunity to progress and is deficient in that it failed to provide and FBA, BIP and extended school year services and as result denied the student FAPE.

A review of the 2013/2014 CSE’s meeting recommendation from April 24th , 2013 for the 2013/2014 school year recommended integrated teaching classes for English, global, science, math provided resource room with a 5:1 ratio 5x weekly for 42 minutes to provide special class reading 15:1 every other day for 42 minutes. But again in the terms of the student’s management needs it is reported that the student needs a special education program to met success in a general education environment but would receive support in integrated co-taught courses and resource room in order to met his reading and written expression that would be addressed in a special reading class but again it was reported that the student does not need strategies including positive behavioral intervention supports and other strategies to address behavior that impede the student’s learning or that of others nor does the student need a behavioral intervention plan. I find that the district IEP plan from the April 2, 2013 and June 2013 meeting was not appropriate and was a denial of FAPE.

RESIDENTIAL ISSUES W:\IHOs\ CSD\Draft Decision\RESIDENTIAL ISSUES.doc

The Residential Component of K School

The Parents testimony was clear and uncontroverted as to the difficulties they encountered with the student performing homework at home while the student was at the district program. The father testified they spent hours helping the student with his homework leading to frustration and meltdowns. The student continued to have difficulties at home while he was enrolled at the K school 5 day residential program completing homework assignments while at home. The K school progress reports also reference difficulties with the student completing assignments. There were proctored study halls throughout the week including private reading time before dinner and proctored study halls after dinner or during the week and there was proctored study hall on Sunday evening upon the return of the students to K school who were 5 day residential students. The support provided from the K school staff was provided by skilled Orton Gillingham instructors familiar with the student and the student’s deficits. Those skilled professionals had difficulties to a lesser degree then encountered by the parent with difficulties in task and homework assignment completion which would be more difficult and complicated as the content area spirals from 6th -7th grade to 8th and 9th grade. Furthermore the father testified that they are a very close knit family and the parental involvement in the student’s education ongoing since the student began having difficulties and continues to this day. The father’s behavior intervention reward system is a benefit to the student the district testing indicated regression beginning the September school years and the importance of the family involvement would indicate that the 7 seven day residential program would not be appropriate for LRE reasons. The continuity of the 5 day residential is important for consistency academic support and to facilitate the and as a result I find that the residential component is necessary and appropriate for the student to derive FAPE as such the residential component should be included in the reimbursement of the District to the Parent and or K School.

EQUITIES PRONG 3 THE EQUITIES

The final of the Burlington Prongs is the equities of the situation. The district contend that the parents have failed to met its burden and that it failed to comply with the 10 day Nickerson Rule and secondly the parents failed to disclose additional testing after demanding a 2nd CSE meeting in June of 2013 to voice their displeasure with district’s program. The parents contend that the equity favor the parents and that they had timely provided notice to the district of their concerns of the appropriateness of the student’s IEPs and going back to December of 2010 when the district found the student ineligible for special education services but qualified as a student with disability under Section 504 of the Rehabilitation Act. The parents claim that the district despite knowing that the student was placed by the parents at the K school never called for another CSE meeting to discuss the parent’s concerns. The parents also argue that they submitted a timely 10 day Notice on August 22nd, 2012 regarding the 2012/2013 school year by means of J275 and also the parents submitted a timely notice J123 on May 17th, 2013 for the 2013/2014 school year. The parents argue that they provided notice of their displeasure with the program at the district leading to the 2011/2012 school year and furthermore the district failed to provide the parents with the procedural safeguard notice. As a result I find that they district has failed to show that and provided a procedural safe guard notice to the parents and that said failure to the parents provide written notice to the district is hereby excused. As I result I hereby find that the equity favor the parents in reimbursements of their claims.

Furthermore it should be noted that the district was critical of the parents failing to provide reports between the April 2013 CSE meeting and the June 2013 meeting on or about the June 2013 meeting. The district asked the parents about additional services they were seeking failed to take into account the student’s needs and the parents were similarly seeking the district to up the ante and provide additional services that were not previously offered. Nonetheless I find that the equities favor the parents. The June CSE meeting was more similar to a resolution settlement session since and as a result the reports were not crucial to the operation of the CSE. The parents did not give the district regulatory advance notice of their enrollment at D camps sponsored by K school for the summer of 2010. The 2010 would be the commencement of the 2010/2011 school year. The district, up to that point in time, had not provided for an extended school year for the student and I find the district did not have any advance notification or awareness that the parents would be enrolling the student in extended school year and seeking reimbursement from the district. I so find that Extended School Year Tuition Financial Aid Paid by the Parents 2011/2012 @ K School 2012/2013 @ K $ School 2013/2014 @ K $ School

TOTAL $

Based upon the previous finding that the parents have met the Burlington Prong 2 Test for the years 2011/2012, 2012/2013, and the 2013/2014. I find that the parents have provided proof of payments in said amounts and as a result I direct that the district reimburse the parents in the sum of $ 00 for reimbursement for tuition incurred over the past 3 years in the form of a retroactive reimbursement J180, 187, J197, 198 and J 200. The parents are also seeking prospective reimbursement for the financial aid offered by the K school to the parents with the condition that said amount would be reimbursed said amounts would be in part equivalent to a loan and or financial aid. Parents are seeking prospective reimbursement in the amount of I further find that this IHO has the authority and jurisdiction to order prospective reimbursement SRO12-152 for the $ which is conditional owed upon and the decision herein. As a result I direct that the district prospectively reimburse the unpaid portion of the student tuition for the 2011/2012, 2012/2013 and, 2013/2014 in the sum of $ 0 within 30 days of the date of this order.

FNDINGS

1. I find that the district failed to conduct a FBA for the student and failed to properly implement an appropriate BIP. It should also be noted that I further find that the school psychologist contrary to the stated job description in the district 2 year plan J287 job description handbook inappropriately relied on the behaviorist and improperly departmentalized the role of the school psychologist and the role of the behavioral specialist.

2. As a result I find that the district failed to establish reasonable cost containment with flexibility sufficient enough to accommodate specific narrow focused evaluation, failed to take into account factors such in inflation or adjustments since the survey was preformed years ago.

3. Also I find that the district failed to initiate an Impartial Hearing to defend their initial evaluation or to contest the parent’s independent education evaluation for its failure to meet the school district’s criteria in which it would include the cost containment criteria.

4. I find the district should have classified the student as a multiple disabled on the basis of criteria. The classification and the classification do not result in denial of FAPE unless it was utilized to eliminate, deny or avoid delivery of services. As a result I find that the district’s failure to classify the student as multiple disabled with and criteria did not amount to a denial of FAPE.

5. The cumulative effective of these procedure violations lead to a denial of FAPE during the following school years 2010/2011, 2011/2012 and 2012/2013, and 2013/2014, and I so find; also I find that the district did not violate its child find obligations.

6. The district’s staff has failed to identify the causes of the inconsistencies and the antecedents or the triggers of the inconsistencies and as result I find that the district failed to provide FAPE from the beginning the school year in September 2010 through December 2010 the date that the 504 plan was implemented.

7. The district did not show progress in the student’s areas of deficits, namely the word isolation, attack skills, decoding skills, and by evidence of his spelling nor any progress in the writing deficits which the aforementioned weaknesses. As a result of the aforementioned, I find the district’s 2010/2011 program did not provide FAPE and would not provide FAPE for 2011/2012 school year.

8. Based upon the reports from the K school the student’s behaviors have diminished in terms of frequency and intensity. I find that the student did make meaningful progress with the behaviors that impacted his learning.

9. I find that the student obtained meaningful progress while at the K school during the 2011/2012 school year and that the K school program was appropriate for the student especially in areas of the student’s academic deficits.

10. The district is critical of the student in certain areas that he achieved less than a year’s growth however when the student initiated his enrollment at K school he was several years behind and several areas. The district criticizes the K school program for said regression however the district’s IEP from the May 18th, 2012 CSE meeting does not recommend extended school year services. As a result of the aforementioned I find that the district’s 2012/2013 IEP did not afford the student an appropriate opportunity to progress and is deficient in that it failed to provide and FBA, BIP and extended school year services and as result denied the student

FAPE.

11. I find that the district IEP plan from the April 2, 2013 and June 2013 meeting was not appropriate and was a denial of FAPE.

15. I find that they district has failed to show that and provided a procedural safe guard notice to the parents and that said failure to the parents provide written notice to the district is hereby excused. As I result I hereby find that the equity favor the parents in reimbursements of their claims.

16. As I result I hereby find that the equity favor the parents in reimbursements of their claims.

17. Nonetheless I find that the equities favor the parents because the June CSE meeting was more to a resolution settlement session since and as a result the progress reports were not crucial to the operation of the CSE.

18. I find the district did not have any advance notification or awareness that the parents would be enrolling the student in extended school year and seeking reimbursement from the district; the district up to that point in time had not provided for an extended school year for the student and.

19 Based upon the previous finding that the parents have met the Burlington Prong 2 Test for the years 2011/2012, 2012/2013, and the 2013/2014. I find that the parents have provided proof of payments in said amounts and as a result I direct that the district reimburse the parents in the sum of $ 00 for reimbursement for tuition incurred over the past 3 years in the form of a retroactive reimbursement J180, 187, J197, 198 and J 200.

20. I find that the parents have provided proof of payments in said amounts and as a result I direct that the district reimburse the parents in the sum of for reimbursement for tuition incurred over the past 3 years in the form of a retroactive reimbursement J180, 187, J197, 198 and J 200.

21. I further find that this IHO has the authority and jurisdiction to order prospective reimbursement SRO12-152 for the which is conditional owed upon and the decision herein. As a result I direct that the district prospectively reimburse the unpaid portion of the student tuition for the 2011/2012, 2012/2013 and, 2013/2014 in the sum of within 30 days of the date of this order.

ORDERED

ORDERED; The district reimburse the parents in the sum of $ for reimbursement for tuition incurred over the past 3 years in the form of a retroactive reimbursement; and it is further

ORDERED As a result I direct that the district prospectively reimburse the unpaid portion of the student tuition for the 2011/2012, 2012/2013 and, 2013/2014 in the sum of within 30 days of the date of this order; and it is further

ORDERED I find that the parents have provided proof of payments in said amounts and as a result I direct that the district reimburse the parents in the sum of $ for reimbursement for tuition incurred over the past 3 years in the form of a retroactive reimbursement J187, J197, and J 200; and it is further

ORDERED As a result I direct that the district prospectively reimburse the unpaid portion of the student tuition for the 2011/2012, 2012/2013 and, 2013/2014 in the sum of within 30 days of the date of this order.

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.”

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.” July 2, 2014