NY IHO #2015-ih-122: Impartial... | Special Education Law

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X In the Matter of the Application of the Parent and Guardian of X, and The Union Free School District. X

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer

J. McKeever, Esq.

Date: March 23, 2015

FINDINGS OF FACT AND DECISION

NYS Case Identifier No.: Student’s Name: . District: Union Free School District Hearing Requested By: Parent-Father Pre-Hearing Conference: August 1, 2014 Dates Of Hearing: August 25, 2014, September 11, 17, 18, 2014, October 1, 7, 20, 29, 2014, November 6, 20, 25, 2014, December 4, 2014, December 10,

2014 and January 13, 2015. Hearing Officer: J. McKeever, Esq.

_________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 25, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD

YY.: Parent-Father

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K. Supervisor of Secondary Special Education UFSD

YY: Parent –Father

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD: Parent –Father.: Assistant Counsel to the attorney for the parent. Behavior Analyst

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 1, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD: Parent –Father.: Assistant Counsel to the attorney for the parent. Behavior Analyst Special Education Teacher-District

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2014

Laura Ferrugiari, Esq.: Attorney for School District

Lara Bakshi, Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD: Parent –Father

Assistant Counsel to the attorney for the parent.

Speech Teacher Special Education Teacher-District

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2014

4 Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education G UFSD: Parent –Father

Assistant Counsel to the attorney for the parent.

Occupational Therapist Special Education Teacher-District

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD

L.: Parent –Father: Assistant Counsel to the attorney for the parent.

Occupational Therapist

Dr. Speech Pathologist, Audiology, Ph.D-

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 29, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD Parent –Father

Dr. Clinical Psychologist-Parent

Dr. Speech Pathologist, Audiology, Ph.D.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 6, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD: Parent –Father

Dr. Pediatric Neurologist-Parent

Dr. Pediatrician

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD Parent –Father

Dr. Pediatric Neurologist-Parent

Dr. Clinical Psychologist-Parent

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 25, 2014

Esq.: Attorney for School District Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD Parent –Father

Director Lindamood-Bell-Parent Parent Father

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2014

Esq.: Attorney for School District

Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD Parent –Father

Dr. Pediatric Neurologist-Parent

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2014

Esq.: Attorney for School District

Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD

Parent-Father

Teacher

Teacher OT Provider

BCBA

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANAURY 13, 2015

Esq.: Attorney for School District

Esq.: Attorney for Parent

K.: Supervisor of Secondary Special Education UFSD Parent –Father Literacy Coordinator

Procedural History:

The parent filed the Due Process complaint on June 24, 2014. The undersigned was not appointed to this matter until July 28, 2014. A pre-hearing conference was held on August 1, 2014. At the time, the parties requested that the hearing begin in late August due to witness availability.

The hearing commenced on August 25, 2014, and continued until January 13, 2015. I note that the several extensions were requested due to witness availability and due to the scheduling of expert testimony, as well as time to review the record and prepare post-hearing briefs. The Orders of Extension are submitted with the within Decision and Order. Pleadings and Post-Hearing Briefs:

On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), regarding a parent’s request for, among other things, a finding that the Union Free School District (“District”) denied (“R”) a free and appropriate public education (“FAPE”), both procedurally and substantively, during the 2010-2011, 2011-2012, 2012-2013, 20132104 and 2014-2015 school years.^[1] Specifically, the parent alleges that the District failed to offer R a program that addressed his academic needs, particularly in reading and math, and because the District failed to provide the parent with “meaningful participation” with respect to the CSE process, which resulted in a denial of an education benefit to R. The parent also claims that the District denied R a FAPE because they failed to appropriately evaluate him and failed to design a program that met his needs, inter alia (Exhibit H). Further, parent asserts that the District discriminated against R under Section 504 of the Rehabilitation Act of 1973, by failing to accommodate R’s disability and that the District violated 42 U.S.C. Section 1983 by adopting polices that deprived R of an appropriate education under state law.

In the closing brief, the parent requests an Order for the following relief: (1) for the IHO to reconsider the issue of the Statue of Limitations and request that it be extended back to 2009-2010 school year; (2) a finding that the District failed to provide R with a FAPE for the years 2013-2014, 20122013 and 2011-2012 school year; (3) an award of compensatory/additional services of 1:1 instruction in all 4 core subjects of English, Math, Science and Social Studies for a minimum of one class per week, per subject, until such time as true progress is made and that R can perform at grade level with at least a B grade; (4) an award of compensatory/additional services of 1:1 intensive reading and mathematics instruction, 5 days a week for at least 2 hours per day to be provided by in New York (“LMB”). The LMB instruction should be awarded until R obtains a 12th grade reading and math level; (5) a finding that R is entitled to Extended School Year services (“ESY”) to avoid further regression and as compensatory education/ additional services for the District’s denial of FAPE; (6) an Order directing the District to provide all services recommended by Dr. Dr. and Dr. as well as the that was recommended by District but has yet to be fully implemented; (7) appropriate training for R and his parents; (8) direct payment in the amount of 0 for the Evaluation by completed on December 17, 2013, and $ for the evaluation conducted by Dr. on August 10, 2013; (9) reimbursement for 8 weeks of LMB services that the parent obtained in summer of 2014 because ESY or compensatory services should have been provided; (10) direct payment for academic and social summer camps attended by R for the summer of 2011-2012 and 2012-2013 because was entitled to ESY or compensatory education services during this time; (11) attorney’s fees from the time the Due Process Complaint was filed, including, but not limited to, all costs of litigation including expert witness fees; (12) an Order directing the District to fund additional independent educational evaluations necessary to develop a full and accurate

picture of R and his disabilities; (13) a finding that R is entitled to special education services beyond the age of 21 as compensatory educational services for the denial of FAPE since R entered the school district; (14) a finding that the District discriminated against R based on his disability under § 504 of Rehabilitation Act for the years in question; (15) an Order directing the District to reimburse the parent for privately obtained social skills training, tutoring and services; and (16) any and all other relief deemed appropriate by the Hearing Officer.

The District submits that the parent’s claims are limited to June of 2012 as per the two-year Statute of Limitations (“SOL”) under the IDEA. The District also contends that R was offered a FAPE for all the subject school years and that the District’s placement recommendations were R’s Least Restrictive Environment (“LRE”). Additionally, the District submits that the parent is not entitled to any reimbursement for LMB services or an award of any compensatory educational services, and that the testimony of the parent’s witnesses, specifically, Dr. O., Dr. H., Dr. G., Dr. G. and Ms. M., were biased and based on insufficient knowledge of R, and therefore should not be considered (Exhibit 1 and District’s Post-Hearing Brief). Findings of Fact:

R received Early Intervention Services when he was 2-3 years old. R qualified for special education services as a preschool student and attended

) where he remained through first grade.

In 2nd grade R attended elementary school in the District and was classified as a child with . During the same year, R was diagnosed with

Disorder (“ADHD”) (Exhibit 50).

On February 8, 2011, R underwent a comprehensive vision evaluation. As a result of the evaluation, R was diagnosed with and delays. However, the prognosis was good for resolution with therapy (Exhibit 46).

On September 19, 2011, the District completed a when R was in 7th grade. To assess R’s cognitive functioning, the District administered the Wechsler-Intelligence Scale for Children, 4th Edition-Integrated (WISC-IV-

Integrated) which indicated that R had a Full-Scale IQ of which placed R in the h percentile (Perceptual Reasoning was in the th percentile, Processing Speed th percentile, Verbal Comprehension percentile and Working Memory h percentile). In order to assess his academic performance, the District administered the Woodcock-Johnson-III Test of Achievement (W-J-III). In math, the results indicated the following: Calculation-less than the t percentile; Math Fluency - nd percentile and Applied problems th percentile. In Reading, the results indicated

“Letter-Work Identification- h Percentile, Passage Comprehension- rd percentile,

Reading Fluency - h percentile and Reading Vocabulary- h percentile. Spelling was less than the st percentile and Word Attack skills were at the h percentile. With respect to writing, Writing Fluency d percentile and Writing Samples- h percentile (Exhibit 28, page 5, Exhibit 34). At this time, the District psychologist recommended changing R’s classification from “ ” to “ ” (Exhibit 34).

In May of 2012, R scored a on the State ELA assessment and a on the State Math assessment, which are scores a student can obtain on these assessments (Exhibit 22).

On May 24, 2012, the District’s Committee on Special Education (“CSE”) developed an IEP for R’s 8th grade program, which would begin in September 2012. The IEP recommended continued placement in the 12:1:1 class for R’s core subjects with related services of therapy 2.5 times per week for 30 minutes in a 5:1 setting ( ”), Therapy once a week, 1:1 (“ ”) and in a 5:1 setting. However, the CSE added Resource Room once a day for 40 minutes in a 5:1 setting to reinforce assistive technology and “foundational skills in reading and math” (Exhibit 28, page3, Tr. 60).

The “Meeting Minutes” indicate that the Parent told the CSE team that he had not seen any progress during this school year and that he was concerned that he son was not learning (Exhibit 28, Page 2). The general education teacher from the Learning Center stated R is overwhelmed in the general education math support class and the parent questioned whether this support class was effective for his son.

The “general education” reading teacher reported that R was struggling with reading, but stated that R made some progress (Exhibit 28, page 2).

On November 30, 2012, the CSE convened a meeting at the request of the parent and generated a second IEP for 8th Grade. The CSE team continued the same program that was recommended on May 24, 2012 (Exhibit 27). The Meeting Minutes indicate that the father expressed frustration about his son’s education. “In particular, he does not think that his son has been making progress in reading.” And that with respect to math, the father stated: “he is struggles with the basic facts” (Exhibit 27, page 2). The parent also told the CSE that R was not successful with the Kindle (which was prescribe in 7th grade) because there was not enough support on how to use it and because the font was too small. The CSE indicated that theses issues had been addressed, but that the father was displeased about how long it took to get this issue fixed. The special education teacher reported that the 8th grade math curriculum was very hard for R, but that that R “tries hard and completes his homework” (Exhibit 27 page 2). In Reading the “Running Records” indicated that R was decoding at the rd or h grade level (Exhibit 27). The therapist (R. C.) reported that there was an improvement in R’s typing skills and that R was using two hands more consistently and was up to typing 8 words per minute (Exhibit 27, page 2). The Behavior Consultant (R. R.) reported that “response latency” was noted, but that R’s behaviors were not disruptive or inappropriate. As such, he did not recommend a formal Behavior Intervention Plan (“BIP”) (Exhibit 27, page 2, Tr. 75). Dr. who is the Supervisor of Special Education for the District’s Middle School and High School and served as the Chairperson for this CSE meeting in May 2012 (Exhibit 27, 28 Tr. 28), testified that in addition to the services referenced in this IEP, R received reading instruction every other day from Ms. G. However, he conceded that this service was not on R’s IEP (Tr. 70). He also testified that although Ms. G was “Wilson” 2 trained, she used a variety of programs with R (Tr. 78).

Wilson is a multi-sensory reading program.

At the end of this school year, the District generated a “Progress Report” on R’s IEP goals from November 2012 to June 21, 2013 (Exhibit 19). The report indicated that the “Study Skill” goal with respect to spell checking was “Progressing Gradually” as of June 2013. The “Homework” goal was achieved in Jan, April and June 2013. The Goal that R will accept assistance from his teachers and other support staff without protests was achieved by June 2013. The goal that R will use the strategy of underling to highlight important information when reading content materials was achieved by June 2013. The reading goal for “knowledge of curricular level content area vocabulary words in order to successfully comprehend subject textbooks and reading selections” was achieved by June 2013. The reading goal that R would orally retell events in a story that he read in sequential order was achieved in June 2013. It was noted that R had greater success when reading aloud. The goal of decoding 10 multi-syllabic words with and without suffix endings was achieved by June 2013. The goal of when reading a story to himself R will identify the main ideas and pertinent details and identify sentences which related to the main ideas and details was not achieved but it was noted that R was “”progressing gradually.” However, the goal where R had to answer 5 comprehension questions from factual materials that demonstrated an understanding of what he has read was achieved as of June 2013 (Exhibit 19, page 2). In writing, R achieved 2 out of his 4 goals by June 2013 and in math he achieved 3 out of his 5 goals (Exhibit 19).

On June 17, 2013 the District issued a PWN, which was at the end of R’s 8th grade school year for R’s transition into High School. The PWN stated that the District was now recommending placement in a 15:1 class (called “Foundations”) for R’s core subjects as well as Resource Room daily with services, and It was noted that the CSE would now conduct a Functional Behavioral Assessment (“FBA”) and a BIP to address R’s difficulty with initiating tasks and working independently (Tr. 92). The CSE also recommended (Exhibit 20). Additionally, under “Refused Action” section: the PWN states that the parent asked for LMB reading instruction to be provided in school (Tr. 82). The CSE refused and stated that the R’s reading difficulties had been addressed

using an “eclectic” approach that focused on decoding, spelling and reading comprehension skills and that R had made progress. Finally, the PWN indicates that the CSE considered a 12:1:1 class, but said it was too restrictive because that class focused on life skills and functional skills (Exhibit 20).

On the same date, the CSE generated an IEP for 9th Grade, which indicated the 15:1 class for R’s core subjects, with a Regents level curriculum (Tr. 97) (Exhibit 22, Tr. 82). The Meeting Minutes indicate that although R worked hard this year, he struggled with math concepts, which had to be retaught during Resource Room. It was noted that in the self-contained classroom, which was a 12:1:1 class during this school year, R needed frequent refocusing and frequent redirection (Exhibit 21). The Reading teacher, who is a general education teacher, indicated that the R was reading at a rd grade level, but that he had improved in some areas. The

Therapist (R. C.) stated again that R was using two hands on the keyboard and that he was typing 10-12 words per minute (Exhibit 21). She also reported that R’s “scanning skills [had] improved so he does not have to look up and down as often” Exhibit 21). The parent’s attorney asked the CSE Chairperson if R was eligible for Extended School Year services (“ESY”) (Tr. 101). The CSE said R was not eligible for ESY because there was no evidence of regression (Tr. 101).

Further, Dr. testified that the CSE developed this IEP after reviewing all the of the student’s reports (Tr. 104), which included a Confidential Annual Review Report by dated February 9, 2013, R’s report card (June 16, 2013) and the reports from the , and providers (Exhibit 21). Ms.

.’s report indicated that R scored a on the ELA State test and a on the Math State test (Exhibit 22). Although Ms. noted that R’s grades were average, in writing R required multiple teacher prompts to bring forth his ideas, even when using assistive technology, and that even with these supports it takes him an extremely long time to express his ideas and put them down into written form. However, with teacher support he can write an introduction, two supporting bodies and a closing paragraph (Exhibit 22, page 1). In reading, Ms. . noted that R’s independent reading level was at the third grade level and that even with assistive technology, R

required significant support in helping him retell a story sequentially and in order to isolate the main idea. She also noted that R benefited from intense reading instruction (Exhibit 22). In spelling, Ms. noted that R required significant support in spelling high frequency words and that “he has trouble spelling words that were practiced on multiple prior meetings…” In math, she noted that R’s computation skills were “evolving,” but that he “require[d] much support to have success in the self-contained classroom” (Exhibit 22, page 3). Finally, Ms. reported that R was receptive to 1:1 instruction and that he benefits from repetition and practice of previously learned concepts (Exhibit 22, page 3).

Dr. testified that his staff reported that R made “good improvements” during this school year, but homework was an issue (Tr. 85). However, he conceded that math was still a problem for R. Nevertheless, he believed that a 15:1 was a small class and that it provided more individualized instruction for R (Tr. 96).

In August 2013, Dr. Ph.D, conducted an Auditory Processing Evaluation. The results indicated auditory and language deficits in areas of integration, shortterm memory, phonological awareness and reading fluency. Dr. G. recommended a small class size, reading support to address decoding, blending and phonological awareness skills, a life-skills program, 4 times per week in individual and group settings, pull-out special education services as well as an unit to improve clarity and listening ability (Exhibit C)

On October 21, 2013, the District developed an FBA (R. R.) to address R’s noncompliance and inattention issues (Exhibit 17). The FBA indicated that one of the “triggers” or antecedents is when the R is asked to read aloud or engage in a writing task in a group lesson (Exhibit 17).

On the same date, R. R. developed a BIP, which was to be implemented by all staff that worked with R. The BIP targeted complying with instructor demands and attending to tasks (Exhibit 18). The completion criteria indicated that the BIP would remain in effect until the R had 3 weeks without missing more than one home-work per week and without failing to initiate/complete more than two school tasks per week (Exhibit 18).

On October 21, 2013 the CSE held a meeting at the parent’s request to review R’s progress since entering high school (Exhibit 16). The Meeting Minutes indicates that R’s special education social studies teacher reported that R had received “90’s” on his quizzes, which covered Regents level material, except for one (Exhibit 16, page 2). The Resource Room teacher reported that she sees R every day and every other day for one period in a “building level” support class, and that R was making progress on “his reading goals” and other “academic goals.” Dr. testified that an aide was assigned to Ms. V.’s Resource Room class at this time (Tr. 122). reported that R was more cooperative utilizing his assistive technology. reviewed the FBA and BIP and noted that teacher’s were concerned about R initiating tasks and his “latency” in responding to teacher prompts. said that R seemed responsive to positive reinforcement when he initiated or responded to teacher prompts and suggested utilizing a “self-monitoring/self-assessment program, where the R would rate his own behavior throughout the day, which would be verified for accuracy with checks by the staff. R. Father’s told that CSE that he felt that implementing the BIP would be isolating and detrimental to R’s self-esteem (Exhibit 16, Tr. 138). He also told the CSE that he was concerned that R was not making progress in reading and that R only made process when he was at a few years ago (Exhibit 16, 2). The CSE discussed the possibility of adding some decoding and fluency goals, but the notes indicate that the meeting had to end because the parent’s attorney had to leave for another appointment (Exhibit 16, page 3, Tr. 140).

The CSE reconvened on November 12, 2013. The District’s PWN of the same date indicates that the District reviewed the Auditory Processing Evaluation, the FBA/BIP and teacher reports. The PWN notice also indicates that the CSE was aware that the parent was seeking after school services and that the parent requested that the District conduct a evaluation (Tr. 154). The CSE denied the parent’s request for a evaluation, but offered to conduct a educational evaluation in the spring 2014, instead of the fall 2014, which is when the District was required to conduct its triennial evaluation of R. The CSE also refused the parent’s request for after school services and continued to recommend the 15:1

class with Resource Room daily and Consultant Teacher direct every other day, as well s services, and The CSE also noted that the BIP would help the Student’s motivation, response latency and inattention (Exhibit 15).

On the same date as the PWN, the CSE developed an IEP (November 12, 2013). The IEP continued the Regents track diploma and placement in the 15:1 class (Exhibit 16). The Meeting Minutes indicate Ms. V. offered to meet with R in 9th period for additional help, but that R “has not taken advantage of this” (Exhibit 16, page 4, Tr. 123). R’s social studies teacher said that R was consistently handing in homework and participating in class. The parent stated that homework was done in Resource Room. Ms. H. stated that the R thought this was helpful (Exhibit 16). reported that R would be using several new software programs on his Ipad. She also reported that R’s father signed the User Agreement in order for R to take the Ipad home, but that the father crossed out an “important” part of the text in the agreement.^[3] It was reported that the behavior consultant, discussed the program that was used to address R’s reading and writing fluency and stated that R has responded very well. However, the minutes do not indicate what program he was actually referring to. Ms. D., R’ speech teacher, reported the results of Dr. G.’s evaluation to the CSE. It was agreed that R would not received the Unit as recommended by Dr. G. (Tr. 150). Additionally, the CSE refused to increase the amount of services that Dr. G. recommended because the District stated that R’s speech services and academic supports were sufficient to meet R’s needs (Exhibit 16, page 4, Tr. 135).

On December 17, 2013, Dr. conducted a Evaluation at the request of the parent. As part of her evaluation, Dr. O. administered cognitive and academic testing, which included the WISC-IV and the W-J-III, among others, as well as social/emotional assessments and a classroom observation (Exhibit 50).

With respect to R’s cognitive functioning, Dr. O. noted that there was significant discrepancy between the R’s verbal and non-verbal reasoning abilities versus other higher-order cognitive processes. As such, she concluded that the General Ability Index (“GAI”) was a better method of determining R’s true cognitive functioning. Based on her testing, R was within the range at the h percentile (GAI=87). Dr. O. stated that this was consistent with results of R’s past evaluations (Tr. 1372). She noted that R has strengths in verbal comprehension skills (37th percentile) (Tr. 1373), which was in the average range. His weaknesses included “Perceptual Reasoning” h percentile), which was Low Average (Tr. 1374) and he had significant difficulty with working memory, which was below the st percentile.

In addition, R’s processing speed was at nd percentile, which was in the Extremely

Low range.

With respect to academic achievement, Dr. O. administered the WIAT-III, Gray Oral Reading Test, Fifth Edition (GORT-5) and the WJ-III.

On WIAT-III, the Student’s Basic Reading Composite score was at nd percentile, which was in the Extremely Low Range and approximately the grade level. Dr. O. noted that this suggested that R made minimal progress since his previous testing (Exhibit 50). She also reported that R’s decoding skills were at the grade level. With respect to writing, R’s Written Expression Composite was less than the st percentile, which was the Extremely Low Range. Spelling was also below the st percentile and at 1 grade equivalent. In Math, R’s Composite score was at the rd percentile, which was also in the range (Exhibit 50).

R’s GORT-5 scores for the reading sub-tests concerning Rate, Accuracy, Fluency and Comprehension ranged from the th percentile to the h percentile.

The grade equivalents were mid-rd grade to the very beginning of the h grade

(Exhibit 50, Tr. 1479-1484).

On the WJ-III, the R ' Writing was at the st percentile. His Math Fluency was also at the st percentile and his Reading Fluency was at the percentile. The Grade Equivalents were mid-nd grade to the mid h grade (Exhibit 50, Tr. 1488-

1489).

Dr. O.’s Social/emotional assessments indicated that the both parents, who do not live together, reported that R was withdrawn and exhibited odd behavior. However, one of R’s teacher reported she did not observe any social-emotional or behavioral problems. However, the second teacher reported that R was “at risk” for learning with significant problems in spelling and reading.

In summary, Dr. O. reported that R is a good-natured, sensitive young man who presents with verbal and non-verbal intellect. Dr. O. noted that R is functioning on a to grade level across reading, writing and math and that R’s severe deficits in reading qualified him for a DSM-V diagnosis of with . She noted that R had made little to no progress in his reading skills, particularly with regard to decoding, when compared to previous evaluations. Dr. O. also concluded that R qualified for DSM-V diagnosis of with an and an .

With respect to social/emotional functioning, Dr. O. points out that without appropriate support and intervention, R was at risk for further academic and social/emotional difficulties. At the end of her report, Dr. O. made several recommendations with respect to an appropriate program for R. These include, but are not limited to: 1) 1:1 instruction in a small therapeutic environment using a phonetic based and multi-sensory approach; 2) ESY services to address academic regression; 3) Individual at increased frequency with a focus on that includes parent training to reinforce the keyboarding skills in the home; 3) Continued ; 4) in school to address his response to academics; 5) smaller class size and more structured environment with individualized assistance in core subjects; 6) Intensive and individual outside tutoring such as LMB to address R’s reading or an Orton-Gillingham, multi-modal approach to reading remediation; 7) After school math tutoring using a program such as “On Cloud Nine Math, or A Visualizing and Verbalizing Math program; 8) Eliminate any foreign language requirement; 9) Double time to complete tasks, preferential seating and testing in a separate location; 9) Support with executive functioning such as modeling

multi-step problem solving tasks, clear and structured presentation of new material, outlining and previewing, among others; and 10) Participation in regular social activities (Exhibit 50, (Tr. 1509 -1514). In conclusion, Dr. O. opined that the District’s program was not sufficient to meet R needs and that R was not making sufficient progress (Tr. 1516-1517).

On April 4, 2014 the CSE held a meeting at the parent’s request and developed an IEP (Exhibit 14, Tr. 158). Dr. O. and the parent’s attorney attended the meeting, as well as the District’s attorney and District staff (Exhibit 14, page 1). The District reviewed the evaluation by Dr. O. and decided that R would continue to receive his current special education program because they believed the program was meeting his needs (Exhibit 13, Tr. 179). Dr. noted that Dr. O.’s testing was all done in one day, which suggested that the results may not be accurate. However, Dr. confirmed that Dr. O.’s testing results were valid (Tr. 302303). He just did not agree with Dr. O.’s recommendations (Tr. 303). The parent requested that the CSE recommend 1:1 tutoring services for R at which is an educational facility that was not affiliated with the District (Exhibit 13). The CSE denied the parent’s request. R’s father signed the User Agreement for the Ipad and signed consent for BIP (Tr. 182). However, he also asked for 1:1 tutoring at after school. The CSE refused. (Exhibit 6). Dr. stated that R was tested in December 2013 so he believed that there was not enough time to evaluate whether R’s program was actually working. He also stated that Dr. O. was making judgments about programing without hearing from R teachers (Tr. 161). Additionally, Dr.

stated that the BIP and had not been implemented because parent would not cooperate. Socially, the members of CSE reported that R had friends at school and that he appeared confident. However, Dr. testified the R reported l ideation to his staff in February 2014, which, in part, was related to R feeling overwhelmed at school (Tr. 327).

By letter, dated May 5, 2014, the parent consented to the CSE’s request to conduct a re-evaluation of R. However, the parent stated that consent was conditioned upon the District using the same tests and sub-tests utilized by R’s

independent evaluators (Dr. O. and Dr. G.). The parent also stated that by using the same tests and the same sub-tests, an objective fact-finder would have the ability to compare and contrast the testing results (Exhibit 11).

On May 6, 2014, the parent signed the District’s “consent form” for the reevaluation, which did not include the above conditions (Exhibit 11, page 1).

On May 20, 2014, M.B., a District school-psychologist, conducted a

Update” for R (22, 2014, Exhibit 10). Ms. indicated that “given [the Student’s] most recent extensive evaluation,” a full cognitive battery was not warranted. (The examiner noted the testing conducted by Dr. O. and her findings). However, the District conducted a further assessment of the Student’s memory using selected subtests from the Wide Range Assessment of Memory and Learning (WRAML-2). The District also administered selective sub-tests from the Woodcock-Johnson III Normative Update Tests of Cognitive Abilities to assess the Student’s verbal and visual memory (WJ-III-COG).

On the WJ-III subtest of “Numbers Reversed” R was in the h percentile. Ms.

Boone did not note the import of this score in her report. However, on the WRAML-2 Picture Memory subtest, R had a SS of which placed him in the h to h percentile. Ms. noted that this was an area of strength for R. Additionally, on the WRAML-2 “Number-Letter” subtest, Ms. reported that R achieved a scaled-score of which placed him in the th to h percentile. However, the report indicated that Ms. did not require R to manipulate the order of the digits and letters, which he was required to do in the “Letter-Number” Sequencing subtest of the WISC-IV (Dr. O.), where he achieved a SS of that placed him below the t percentile (Exhibit 10, page 3). In the “Summary and Recommendation” section, Ms.

stated that R achieved to Average scores with respect to the above referenced cognitive subtest and she noted that “visual memory” was an area of strength for him (Exhibit 10, page 4).

On May 22, 2014, Ms. V. generated a report with respect to R’s academic progress (Exhibit 8). The report is notable in that she states that R is doing well in reading, writing and math. Specifically, in reading, she notes that after R reads a

story is he able to orally retell events in the story in sequential order that includes a beginning, middle and end, but that he has trouble remembering the names of people or specific places. She also reported that R had learned a “lot of new vocabulary” and “therefore [he] is able to read multisyllabic content” and that “he is developing critical reading skills.” She further reported that R was able to increase his [reading fluency] to 140 words per minute by the third reading. In writing, She reported that R, with assistance, could write an essay that is logical and sequential with appropriate details and that he is making progress with his ability to spell high frequency words (Exhibit 8, page 2). In math, she reported that R had learned the “first half of the curriculum of the new Algebra Common Core” (Exhibit 8, page 20). Ms. V. testified that she addresses R’s reading and writing deficits in Resource Room (Tr. 775, 828). She also testified that she uses the “Read Naturally” program to address R’s reading fluency goal and uses content materials for all of his other reading goals. Additionally, although Ms. V. testified that R is reading at rd grade level, she thinks he is able to access high school level materials Tr. 792).

On May 21st and May 14th 2014, conducted a re-evaluation (Exhibit 36). Ms. D. indicated that R had average expressive and receptive language abilities, but is significantly delay in written expression. She also noted that R had average vocabulary skills and appropriate pragmatic judgment (Exhibit 36). She concluded that although R continues to present with language deficits, he improved his speech and language abilities.

On March 27, 2014 and May 21 2014, R. C. conducted an re-evaluation. Ms.

C. reported that R would benefit from a several assistive technology interventions including a computer/tablet for written work, as well as Bookshare and wordprediction software to help build vocabulary, among others. (Exhibit 35). At the hearing, Ms. C. testified that R has lots of assistive technology, which he can access on his Ipad. She also stated that she meets with R once a week for on either a push-in basis or in separate location and that she consults with R’s teachers throughout the school year (Tr. 979, 1003). Additionally, Ms. C. acknowledged that R had a goal for signing his name incursive (Tr. 1152). However, she testified that R

told her that he did not want to write his father’s name so she taught him to write his initials in cursive instead. However, in the Meeting Minutes on the IEP dated June 14, 2014, she reported to the CSE that R could sign his name in cursive. The Minutes do not state anything about R just writing his initials (Exhibit 28). Further, according to Ms. C., R would have made more progress if his father had signed the BIP and the User Agreement sooner. However, her reports throughout the subject school years indicated that R was making progress and she testified that R had actually achieved all of this goals from early 2013 to April 2014, which is when the BIP was not in place and when the User Agreement had not signed by R’s dad (Tr. 1194). She also noted that from November to April 2014, R increased his independence in uploading documents on his Ipad, which, again, is when there was not BIP was not in place (Tr. 1160). Further, with respect to her re-evaluation, Ms. C. testified that although R had fine motor delays, she believed that he had a “functional grasp,” and therefore did not require any fine motor goals on his June 2014 IEP (Tr. 1176-1195).

On May 27, 2013, conducted a classroom observation of R in his science class. Ms. reported that R was able to answer a question correctly and that he took notes, was attentive to the teacher and attentive to the other students when they answered a question (Exhibit 7). She also noted that R answered two questions correctly and that R seemed happy when the teacher complimented him on his vocabulary (Exhibit 7).

The CSE team met on June 5, 2014 and June 24, 2014 and developed an IEP for the 2014-2015 school year (Exhibit 4). The Meeting Minutes from the CSE meeting on June 5, 2014 indicated that Ms. V. reported on R’s “goals in his Resource Room, including his progress on his reading goals.” Ms. V. noted that R had some difficulty “finding the information in the text that is necessary to answer some reading comprehension” questions. R. C. reported that R was “buying-in” to using the assistive technology software” and that he was typing 11-14 words per minute, but she noted that his speed was inconsistent.

R. R. reported that R’s “behaviors that were displayed in the past were barriers to learning.” However, he stated: that “these behaviors are no longer barriers to

learning.” He also stated that the R made “outstanding” improvement in his reading fluency, which improved to 140 words per minute from 90 words per minute in the previous school year. He further stated that R had become an “active participant in the learning process.” And that R now “follows teacher directives, initiates work when asked, works independently, completes work in a reasonable amount of time and elaborates on his answers to questions with details.” Id.

It was noted that R was offered “building level” reading support for two hours per week after school, but that R did not want that because it would interfere with his social activities and the parent wanted the reading instruction during the school day (Exhibit 4, page 2). It was also noted that the R was only recently making social connections and he had “blossomed” socially and was making new friends (Social Worker report, Exhibit 4, page 2).

The Meeting Minutes from the CSE meeting on June 24, 2014 indicated that the parent’s attorney served the CSE with the parent’s DPC at this meeting.

Parent again asked for ESY services. The CSE denied his request and stated that the staff indicated that R did not experience any regression The parent advised the CSE that R would be attending during the summer (Exhibit 4, page 4).

As indicated in the PWN, the program recommendation remained the same, to wit, a 15:1 Regents Diploma class for R’s core academic subjects, Resource Room for 40 minutes each day, a skill building class every other day, and related services of therapy, therapy and (Exhibit 4).

Following the June 2014 CSE meeting, the District generated a Progress Report for the 2013-2014 School year, dated July 14, 2014 (Exhibit 2). The District reported that R achieved 5 out of 7 reading goals, but was “progressing satisfactorily” on the 2 goals he did not achieve (Exhibit 2). In writing, R achieved 1 goals and was “progressing satisfactorily” on his other writing goals. In math, R achieved 1 math goal (which was “when given six algebraic equations, R will solve for the variableCriteria-66% success over 2 weeks) and was “progressing satisfactorily” on his two other math goals.

R attended in the summer of 2014. is the Director of the in New York. Ms. M. testified that LMB is researched based reading remediation program that was developed on a cognitive and decoding theory (Tr. 1610). Ms. M. stated the R attended in 2009 when he was in the 5th grade. At that time, R was reading at a kindergarten to first grade level (Tr. 1613-1615). Ms. M. testified that after approximately 250 hours of daily, 1:1, reading instruction (“Seeing Stars program”), R improved to a d grade level. When R returned to in the 2014, he was still reading at a rd grade level, which suggested to her that R had made not progress since 2009 (Tr. 1623). Over the summer of 2014, R attended 90 hours or LBM instruction. Ms. M. opined that during this time R made progress in “word attack” skills, “site word,” development, and “reading fluency” (Tr. 1625). Ms.

M. recommended that R receive, at minimum, an additional 100-140 hours of 1:1 reading instruction and then multiple rounds of intensive instruction thereafter because R was not a student whose reading deficits could be remediated with one additional round of intense instruction (Tr. 1626)

With respect to Math, Ms. M. testified that R is functioning at a grade and that he would benefit from at least 80 hours of their “Cloud Nine” program. However, to approach grade level, R would need multiple rounds of 1:1, intensive math remediation (Tr. 1629). Finally, Ms. M. testified that she believed that R has responded well to LMB because it’s an intensive program, provided in a 1:1 setting (Tr. 1630). Reading Program for the 2013-2014 school year:

As indicated above, R. R. is a BCBA who conducted R’s FBA and developed his

BIP. Mr. R. is self-employed at ““company”,” which is a company that he owns, and he is a paid consultant for the District (Tr. 497). Mr. R.’ resume indicates that he has a Bachelor of Arts in Business Administration and a Master of Science in psychology (Exhibit 38). It also indicates that he completed “Graduate Work” in “Applied Behavior Analysis” and that he completed an “Intensive Practicum in Applied Behavior Analysis” (Exhibit 38).

Mr. R. testified that he developed a reading program for R for the 2013-2014 school year, which he said was different from the year before because he added “new components” (Tr. 392). However, Mr. R. did not state what the new components were, or actually what the reading program was, except to say that it was not a Wilson program (Tr. 392). Nevertheless, Mr. R. testified that he developed the reading program for R and modeled it for R’s teachers and then gave R’s teachers feedback on how to implement his program and told them how they should collect the “data” (Tr. 392-393). On cross-examination, Mr. R. conceded that he was neither a psychologist nor a special education teacher and that he did not have any certifications in reading or reading instruction (Tr. 498). Nevertheless, Mr. R. stated that he had worked with someone previously who actually was a reading expert, though he did not name the person or reference any of that person’s credentials, or how, if at all, that made him a reading expert. To be sure, Mr. R. testified that he took “evidenced based” reading intervention courses in Graduate School (Tr. 346). However, there is no reference to any training in reading or reading instruction on his resume (Exhibit 38).

Further, Mr. R. testified that he observed R read “hundreds of texts” and he claimed that R was an “astronomical learner.” He also testified that R was “getting A’s” in his subjects and that he was “performing at the top of his class” (Tr. 481, 475). However, he also testified that there were “very few times” that he actually worked directly with R during the 2013-2014 school year (Tr. 349), and when asked on direct examination about a 5 page story that he reported observing R read, which, by all accounts would have been a very impressive accomplishment for R given his reported deficits in reading, Mr. R. could not remember the title of the story (Tr. 475). Additionally, although Mr. R. submitted a list of reading interventions he claimed were employed during the 2013-2014 school year (Exhibit 54), the evidence shows that this document was created in July 2014, which is after the District was served with parent’s DPC. Thus, from an evidentiary perspective, I accord this document little to no weight as it appears to have been created for litigation purposes and to bolster Mr. R.’ testimony.

With respect the BIP, which was implemented sometime in April 2014, Mr. R. testified that it was a success and that by June 2014 R no longer exhibited the BIP’s targeted behaviors, which he now described as R’s executive functioning issues (Tr. 475). Significantly, Mr. R. testified that his program addressed Dr. G.’s concerns about “processing speed” (Tr. 471) and that his program addressed the parent’s request for “New Frontiers,” which was a program designed to address executive functioning deficits (tr. 472). However, on cross-examination, Mr. R. stated, albeit reluctantly, that the BIP had only been implemented for approximately 3 weeks (Tr. 534). Additionally, when asked about the “sheet” that R was required to complete each day for the “self-monitoring” component of the BIP, he testified that Ms. V. was responsible for giving it to R each day. However, Ms. V. testified that this was not her responsibility and, based on my observation of her when she was asked about this at the hearing, she looked quite confused as though she did not understand why anyone would think she was” (Tr. 529, 900).

Further, with respect to LMB, Mr. R. described it as the “McDonald’s” of reading intervention, which suggested that he thought it was a poor choice to remediate R’s reading deficits (Tr. 368). He also said that he was familiar with ‘s programing because one of his current employees used to work at though he did not say who or in what capacity. He also testified that one of his mentors was trained in LMB. However, he didn’t tell us who the mentor was or how, if at all, this made him an expert on LMB’s programing. Thus, based on the above, and based on my observation of him during his testimony, which I found contrived and rehearsed, I will not credit his opinion with respect to the efficacy of the District’s reading program. Nor will I credit his opinion with respect to his alleged remediation of R’s executive functioning delays or his opinion with respect to the appropriateness of LBM services for R. Conclusions of Law: FAPE 2012-2013, 2013-2014 and 2014-2015 School years:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that

emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits 8

(Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the

potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 9 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see, also.

Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). Statute of Limitations:

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of

the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 C.F.R. § 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir.2003]). An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide (20 U.S.C. § 1415[f][3][D][i]; 34 C.F.R. § 300.511[f]; 8 NYCRR 200.5[j][1][i]).

As indicated above, the parent filed the within DPC on June 24, 2014. However, the parent requests that his IDEA claims be tolled back to the 2009-2010 school year. Here, parent admits that “he recognized that his son was not progressing” even though the District was claiming that he was. Thus, I find that although the District did not agree with the parent’s assertions with respect to R’s progress, there is nothing in the record to support a finding that the District impeded the parent’s right to file for due process. To the contrary, the evidence shows that the parent was an active participant in the CSE process and the parent admits that he did not believe what the District was telling him. Thus, it was incumbent upon him to file for due process. Finally, I note that there is no evidence that the parent was not aware of his due process rights. Therefore I find that the parent’s claims can only be tolled back to June of 2012. 504 Claims:

At the beginning of the hearing, the parent was advised he had the burden of proof with respect any 504 claims. It his post-hearing brief, the parent alleges that the District discriminated against R by exempting R from

the high school’s foreign language requirement. However, the evidence shows that the parent’s expert, Dr. O., testified that a foreign language requirement would be inappropriate for R. As such, I find that there is no evidence to support the parent’s 504 claim. ADA and Sectionon1983 claims:

As I indicated on the record at the outset of the hearing, as an Impartial Hearing Officer in special education due process hearing, I do not have jurisdiction to hear and decide ADA and Section 1983 claims. Accordingly, these claims were dismissed. The 2012-2013 School Year:

As indicated above, the District’s CSE met on May 24, 2012, when R was still in the 7th grade, and developed an IEP for R’s 8th grade program, which would begin in September 2012. The CSE recommended continued placement in the 12:1:1 class for R’s core subjects with related services of therapy, and The CSE also added Resource Room once a day for 40 minutes in a 5:1 setting to reinforce assistive technology and “foundational skills in reading and math” (Exhibit 28, page3, Tr. 60). The evidence shows that at this time, the Parent told the CSE team that he had not seen any academic progress with respect to R during this this school year and that he was concerned that he son was not learning (Exhibit 28, Page 2). The evidence also shows general education teacher from the Math Learning Center reported that R was overwhelmed in the general education math support class. Additionally, the general education “reading” teacher reported that although R made some progress, he was struggling with reading (Exhibit 28, page 2). Significantly, on or about this time (May of 2012), the CSE was aware that R scored a on the State ELA assessment and a on the State Math assessment, which are scores a student can obtain on these assessments. Additionally, the CSE was aware that based on the results of R’s reevaluation in September 2011, R’s had significant cognitive deficits, as well as attention difficulties related to his diagnosis. The CSE was also aware that the results of the WJ-III, which was

administered as part of the reevaluation, which showed that R had severed deficits in reading, writing and math (Exhibit 28).

Nevertheless, and despite the results of the cognitive and academic testing, and R’s very poor results on the State assessments, the CSE continued to recommend that same program that R had the year before. Although it is understood that the CSE added a Resource Room at this time to address R’s “assistive technology” issues and foundational skills in reading and math, it is also understood that CSE failed to develop a reading program that was specifically targeted to address R’s severe reading deficits. Although the District put forth evidence that Ms. G, who did not testify at the hearing, provided R with reading instruction during this school year, there was insufficient evidence presented with respect to the efficacy of the program or how is was designed to meet R’s needs. To the contrary, the evidence suggests that although there were reading goals and a reference to use of multiple modalities used by Ms. G, there was no specific reading program on this IEP, and there were no additional reading services provided from the year before even though the CSE reported that R, who was now in the 8th grade, was reading at a nd grade level independently. I note that it is commendable that the CSE assigned Ms. G to work with R on his reading skills and it appears from the documentary evidence that Ms. G worked hard with R. However, in light of R’s severe reading deficits, I find that the evidence showed that R required a more intensive and more structured reading remediation program to meet this needs.

Further, it is undisputed that R also had severe deficits in math, and that R required much support to have success in even in self-contained classroom. It was also reported that R was overwhelmed when he attend a general education math lab, which was taught by a general education math teacher. However, there is no evidence that the CSE develop a specific program to meet R’s math needs. Thus, I find that the evidence shows the program recommendation for the 2012-2013 school, which did not include a targeted program to address R’s deficits in reading and math, failed to meet R’s individual educational needs. Consequently, I find that the District failed

to meet its burden of demonstrating that that Student was offered a FAPE for this school year. ESY Services-Summer of 2012:

A student is eligible for a twelve month services or program when the period of review or reteaching to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for the purpose at the beginning of the school year. The typical period for review or reteaching ranges between 20 and 40 school days. As a guideline for determining eligibility for extended school year program a review period of eight weeks or more would indicate that substantial regression had occurred (www.vesid.nysed.gov/sped/2009QA.com).

Here, the evidence shows that R made very little, if any, progress during the 2011-2013 school year. As indicated above, R’s testing in 2011 shows severe academic deficits and his very poor performance on the State Assessments confirmed that R required an intensive program to meet his individual educational needs. It is undisputed that the CSE failed to recommend ESY services for R during the summer of 2012. And based on my review of the meeting minutes of the CSE review meeting in May 2012, it appears that it was even considered as an option for R. Although the standard set forth above speaks to regression with respect to eligibility for ESY services, and there is no evidence that there was any discussion about possible regression with respect to R, the evidence shows that R had very significant struggles in the 12:1:1 class during the 2011-2012 school year class and that he had to be retaught the basic skills in math and reading throughout this school year. Thus, based on these facts, I find that the CSE should have recommended ESY for R during the summer of 2012 and that the District’s failure to do so also denied R a FAPE for this school year. The 2013-2014 School Year:

On June 17, 2013, the CSE generated an IEP for R’s transition to High School (9th Grade). The new IEP recommended a 15:1 class, instead of a 12:1:1 class, for R’s

core subjects, with a Regents level curriculum (Tr. 97). 4 The IEP also provided Resource Room daily, with and (Exhibit 22, Tr. 82). Although the Meeting Minutes indicate that R had worked hard this year, he still struggled with math concepts, which had to be retaught during Resource Room. It was noted that in the self-contained classroom, (which again was 12:1:1 class during this school year and by definition smaller that a 15:1 class), R needed frequent refocusing and frequent redirection (Exhibit 21). Additionally, the Reading teacher indicated that the R was only reading at a 3rd grade level. Although the PWN indicated that the CSE considered a 12:1:1 class, but rejected it because it life skills class at the high school and therefore too restrictive, there was no discussion as to how are why R, who was struggling a 12:1:1 class, would benefit from a 15:1 class. Additionally, the objective testing results that the CSE was aware at this time, clearly indicated that R had very low academic skills in reading and math, which not only demonstrated that R needed an intensive program with individualized support, but clearly showed that a Regents level curriculum, even if taught at a slower pace, was inappropriate for R.

Further, the evidence shows that CSE developed this IEP after Ms. ’s Confidential Annual Review Report dated February 9, 2013, which indicated that R requires multiple teacher prompts in writing to bring forth his ideas, even when using assistive technology. In reading, Ms. noted that R’s independent reading level was at the grade level and that even with assistive technology, R required significant support in helping him retell a story sequentially and in order to isolate the main idea. In spelling, she noted that R had “trouble spelling words that were practiced on multiple prior meetings…” And in math, she noted that R’s computation skills were “evolving,” but that he “require[d] much support to have success in the self-contained classroom” (Exhibit 22, page 3). Finally, Ms. reported that R benefits from 1:1 instruction and that he benefits from repetition and practice of previously learned concepts, which I find would be less attainable in a larger class (Exhibit 22, page 3). Thus, I find that the CSE’s recommended placement in a 15:1 was insufficient to meet R’s educational needs.

The record shows that the Regents curriculum was stretch out over two years.

Additionally, the evidence shows that the reading service that was provided by Ms. G in 8th grade was eliminated during this school year and there are no reading services and/or reading program listed on this IEP other than a note that reading would be worked on in Resource Room. Finally, although the PWN (of the same date) indicated that the CSE would conduct an FAB and a BIP to address R’s difficulty with initiating tasks and working independently, these facts do not support of finding that placement recommendation was appropriate for R. Accordingly, for all of these reasons, I find that this IEP did not offer R a FAPE for the 2013-2014 school year.

Lastly, the record shows that the parent’s counsel requested ESY services during the summer of 2013 and that the parent asked the CSE if they would provide LMB services in school. The CSE refused and stated that the R’s reading difficulties have been addressed using an “eclectic” approach in school and that because the staff did not report any regression, R was not eligible for ESY services. Thus, for the same reasons set forth above, I find R was entitled to ESY services and that the District’s failure to recommend ESY services during the summer of 2013 also resulted in a denial of FAPE. 2014-2015 School Year:

Here, the evidence shows that the CSE team met on June 5, 2014 and June 24, 2014 and developed an IEP for the 2014-2015 school year (Exhibit 4). As indicated in the PWN, the program recommendation remained almost the same as the prior school year, to wit, a 15:1 class for R’s core academic subjects with a Regent’s track diploma, Resource Room for 40 minutes each day, a skill building class every other day (this was added in October 2013), and related services of therapy, therapy and (Exhibit 4). Although the PWN indicted that the District reviewed all the recent reports and evaluations regarding R, including the report by Dr. O., which confirmed that R had severe deficits in reading, writing and math and showed that R had actually regressed academically from 2011, the CSE determined that R would be still be appropriately placed in a 15:1 class for the 2014-2015 school year because the

District’s teacher reports indicated that R was making progress. I disagree. Here, the objective testing results, which the District did not disagree with, showed that R was severely delayed academically and that he was not making progress in the District’s program (Exhibit 50). Although the District claims Dr. O. testing, which was completed in December of 2013, did not allow for enough time to determine if the District’s program for the 2013-2014 school year was appropriate for R because it had only just begun, the evidence shows that even when the District’s program was more restrictive and less challenging as it was when R was in the 8th grade, R was not making progress.^[5] Thus, I find that despite the District’s teacher reports, which claim that the R was making progress during the 2013-2014 school year in a 15:1 Regents class, I find that Dr. O.’s testing results, as well as the District’s testing results in 2011, (which, unlike the San Diego Quick Assessment 6, were normed referenced tests), showed that the District program recommendation for the 20142015 was inappropriate to meet R’s needs and resulted in a denial of FAPE.

Further, I find that the CSE denied the parent meaningful participation in at this CSE process since April of 2014, which deprived R of an educational benefit. Here, the evidence shows that although the CSE allowed R’s father to state his concerns during the CSE meetings, the CSE team consistently disregarded the father’s concerns. Although it is understood that the parent is but one member of the CSE team, and that the CSE need not grant a parent’s every wish, the evidence shows that certainly by April 2014, when the CSE teamed reviewed Dr. O.’s report, that parent’s concerns were more than valid. Notwithstanding this evidence, the CSE continued to ignore the parent’s concerns and actually claimed that the parent was impeding R’s progress because he wasn’t “buying-in” to the District’s program. To the contrary, I find that the evidence shows that R was in fact not making progress, which confirmed that the District’s program was inappropriate for R. Therefore, I find that R was also denied a FAPE because the parent was denied meaningful participation in the CSE process, which

6 This was the assessment that Mr. R. said he used to measure R’s progress during the 2013-2014 and 2014-2015 school years (Tr. 415 ).

resulted in a deprivation of an educational benefit to R. (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].

Lastly, the evidence shows that CSE refused to provide R with ESY services during the summer of 2014. Thus, for the same reasons set forth above, I find R was entitled to ESY services and that the District’s failure to recommend ESY services during the summer of 2014 also resulted in a denial of FAPE. Relief:

Compensatory Education:

Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). As indicated above, I found that R was denied a FAPE for the last three school years. I also found that R was denied ESY services for the last three summers. Although there is no exact science with respect to crafting a remedy, I find that individual tutoring services in reading and math is appropriate for R. Specifically, based on the testimony of Ms. M., I find that R would benefit from 750 hours of reading remediation at and 750 hours of math remediation to be provided after school and during the summer. These numbers may be less if it is determined, by that R does not require this amount of service or if determines that R is not making an appropriate amount of progress with its programs.

The parent’s request for an additional class once a day for each of R’s core’s subjects is denied, in part, because it was be an unworkable schedule for R and for the District’s staff. However, the District is directed to reconvene and develop a new IEP, within 30 days that recommends a smaller class that 15:1 and that does not include a Regents curriculum. Unless the parties otherwise agree Further, I note that I agree with the District that its 12:1:1 life skills class in inappropriate for R and that this class should not be recommended. IEE:

Federal and State regulations provide that, subject to certain

limitations, 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];^[5] 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183

With respect to Dr. G.’s evaluation, there is no evidence in the record that the parent disagreed with a evaluation until he filed for due process. There is also no evidence that the parent requested an IEE for a and/or evaluation. Accordingly, the parent’s request for reimbursement and/or direct payment for Dr. G.’s evaluation is denied. Reimbursement:

The parent seeks reimbursement for R’s enrollment at during the summer of 2014.

As indicated above, I found that the District’s denial of ESY services for R during the summer of 2014 resulted in a denial of FAPE. I also found that s reading remediation program was appropriate to meet R’s needs and that he made progress during the summer of 2014. Finally, there in nothing in the record to support a finding that the parent failed to cooperate with the CSE process. As such, the parent’s request for full reimbursement for his expenses related to R’s enrollment at during the summer of 2014 is granted.

Finally, I have considered all of the other claims for relief and find that they are without merit.

ORDERED

The District shall fund 750 hours of reading remediation at and 750 hours of math remediation to be provided after school and during the summer.

ORDERED

The District shall reconvene a CSE meeting and develop a new IEP, within 30 days, that recommends a smaller class than a 15:1 class and a class that does not include a Regents curriculum. Unless the parties otherwise agree.

ORDERED

The District shall reimburse the parent or make direct payment to Dr. O. for the cost of the evaluation in the amount of $ within 30 days of the date of this decision.

ORDERED

The District shall reimburse the parent or make direct payment to for the expenses related to R’s enrollment at during the summer of 2014. Dated: New York, New York

March 23, 2015

J. McKeever /s/

J. McKeever, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision.

Directions and forms can also be found in the Office of State Review website:

www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD BY THE PARENT

A. Transcript for May 24, 2012, CSE 37 pages

B. Transcript for June 17, 2013, CSE 59 pages

C. Dr. G.’s Evaluation 10 pages

D. Dr. G.’s letter in support of parents’ requests to District 1 page

E. Dr. K.’s letter 6/10/14 District 2 pages ID only

F. Transcript for June 5, 2014 78 pages

G. Dr. O.’s evaluation 29 pages

H. Due Process Complaint filed June 24, 2014 25 0ages

I. 2014 Evaluation-testing by LMB 3 pages

J. 2014 recommendations 1 page

K. Information provided by 19 pages

L. Curriculum Vitae of Dr. D. G. 55 pages

M. Curriculum Vitae of Dr. A. G. 2 pages

N. Curriculum Vitae of Dr. H. 11 pages

P. CV Dr. O. 8 pages

Q. 2013-2014 Student’s Planner 26 pages

s. Flash Drive of CSE meetings

DOCUMENTATION ENTERED INTO RECORD BY THE DISTRICT

1.District’s Answer to Due Process Complaint 7/21/14 30 pages

2. Progress Report for Goals and Objectives, 2013-2014 7/14/14 14 pages

3. Prior Written Notice (“PWN”) Letter 6/24/14 2 pages

4.2014-2015 CSE Individualized Education Program (“IEP”) with Student Information Summary (“SIS”) and Comments from June 5 and 24, 2014

Annual Reviews 6/24/14 -15 pages

5.2013-2014 Report Card 1 page

6. 2013-2014 Student Schedule 1 page

7.Classroom observation by 5/27/14 2 pages

8.Annual Review Report of V. 5/22/14 4 pages

9. Therapy Reevaluation of 5/22/14 4 pages

10. Update by Michelle Boone 5/20/14 4 pages

11.Consent Form For Reevaluation and letter from parent 5/6/1 2 pages

12.PWN Letter for Proposed Reevaluation 5/1/14 3 pages

13.PWN Letter 4/2/14 2 pages

14.2013-2014 IEP with SIS and Comments from April 2, 2014, November 12,

2013 and October 21, 2013 CSEs 4/2/14 14 pages

15.PWN Letter 11/12/13 2 pages

16.2013-2014 IEP with SIS and Comments from November 12 and October

21, 2013 CSEs 11/12/13 14 pages

17.Functional Behavioral Assessment by R. MS, BCBA 10/21/13 4

pages

18.Behavioral Intervention Plan by R. MS, BCBA 10/21/13 4 pages

19.Progress Report for Goals and Objectives, 2012-2013 7/1/13 8 pages

20.PWN Letter 6/17/13 2 pages

21.2013-2014 IEP with SIS and Comments from June 13, 2013 Annual

Review 6/17/13 14 pages

22.Annual Review Report of J. M.B. 2/9/13 4 pages

23. Therapy Report of R. C. 2/8/13 2 pages

24. Review Report by

2/8/13 2 pages

25 Progress Summary by , LCSW 1/14/13 1 page

26.PWN Letter 11/30/12 2 pages

27.2012-2013 IEP with SIS and Comments from November 30, 2012 CSE

11/30/12 2 pages

28.2012-2013 IEP with SIS and Comments from May 24, 2012 Annual

Review 5/24/12 13 pages

29.Annual Review Report of -ID ONLY 3/9/12 4 pages

30. Annual Review Report -ID

by S teph an ie P ersi

ONLY 03/07/12 1 pages

31. Therapy Report of R. C. -ID ONLY 2/27/12 2 pages

32. Summary by , LCSW -ID ONLY 2/13/12 1 page

33. Reevaluation by 9/22/11 6

pages

34. Evaluation By Dr. J. K. B. 9/19/11 14 pages

35. Evaluation by R. C. 3-5/14 5 pages

36. Reevaluation May 2014 8 pages

37.Prior Written Notice 5/24/12 2 pages

38.Resume of Richard R., M.S., BCBA 2 pages

39.Summary of Reading Intervention by Richard R., MS, BCBA 7/21/14 3

pages

40. CSE Transcript from October 21, 2013 meeting 103 pages

41.CSE Transcript from November 12, 2013 meeting 87 pages

42.CSE Transcript from April 2, 2014 meeting 106 pages

43.CSE Transcript from June 24, 2014 44 pages

44.Reading Graphs 2013-2014 school year 8 pages

45.2012-13 Report Card 1 page

46.February 8, 2011 L.I. Optometric Vision Development Report 3 pages

47. Class Schedules with Class Sizes 3 pages

48.October 27, 2014 letter from , Esq., to Ms. ,

Esq. regarding subpoenas 5 pages

49. Affidavits of Service for Subpoenas Duces Tecum 4 pages

50. Dr. O. Evaluation 29 pages

51. Miscellaneous Emails Re: Behavior Intervention Plan and Ipad User

Agreement 14 pages

52. January 18, 2011 Screening Summary Report 4

pages

53. CD of audio copy of CSE meetings taped by the District

Footnotes

[1] The parent requests that the SOL be tolled back to 2009. However, the DPC complaint alleges a denial of FAPE beginning in 2010 (Exhibit H, pate 21).

[3] The parent testified that he cross-out the section where it stated that he would be responsible for the cost of the Ipad if it was lost or stolen. The parent stated that he was afraid that R would lose it and wanted the District to have insurance for it.

[5] As indicated above, R was in a 12:1:1 class for 8th grade and he was not on a Regents track diploma.

[5] , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v]. Here, the evidence shows that the parent requested that the District fund a evaluation. The District refused. The District also did not initiate a hearing to defend its own evaluation. Although the parent’s counsel advised that the parent would then obtain a private evaluation, this did not relief the District of it’s obligation to either grant the IEE request or initiate a hearing. Additionally, I note that the District did not dispute Dr. O.’s findings, only her recommendations. Thus, I find that the parent is entitled to reimbursement or direct payment for the cost of the evaluation in the amount of

Impartial Hearing Decision

Procedural History: