NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
IN THE MATTER OF THE IMPARTIAL HEARING REQUESTED BY FATHER &
MssssHER, ON BEHALF OF THEIR MALE CHILD (“X”) FROM THE ACTION OF
THE CO**ITTEE ON SPECIAL EDUCATION OF THE SCHOOL
SED #
Parents’ Counsel: , Esq., I School Counsel: , Esq.
INTRODUCTION
This hearing is governed by: (1) IDEA (20 USC 1400 et seq.), and its implementing regulations, 34 CFR 300 et seq., and (2) NYS Education Law 4404 et seq., and its implementing regulations, 8 NYCRR 200.5 et seq.
Parents requested this hearing on 11/14/2014 (D 67). The School (“District”) appointed me on 11/14/2014 (T 1222). The District responded to the hearing request on 11/24/2014 (D 69). The pre-hearing conference was held on 12/16/2014 (IHO Exhibit One). The hearing was held 01/20/2015 – 01/23/2015. At the Attorneys’ request, and as per Parents’ Counsel’s letter (IHO Exhibit Seven), the decision date was extended on 01/27/2015, 02/26/2015, 03/28/2015, 04/27/2015 and 05/26/2015. The record closed on 06/16/15. The decision is due on 06/26/2015.
It was a closed hearing. Ten witnesses testified, including the District’s Director of Instruction, Student Services & [[[[[[[[[[[[[[ (J), the District’s ***** School Principal (RE), the District’s ***** School Counselor (Q aka N), X’s Math Teacher at The Z School (“Z”) (O), X’s Social Studies Teacher and Athletic Team Coach at Z (K), X’s History Teacher / Academic Advisor at Z (Y), X’s >>>>>>>>> Teacher at Z (W), X’s <<<<<<<<< Teacher at Z (B), Z’s Director of /////////////// (M), and X’s Mother. Exhibits entered into evidence numbered D1 – D 87, and P A – P JJ (T 1226; T 1387-1388; T 1470; T 1842). Complete exhibit lists and IHO Exhibits One and Seven are attached hereto. Both attorneys submitted written closing arguments.
In 2013, there was a hearing between these same parties who were then represented by these same Attorneys. Parents therein requested tuition reimbursement for their unilateral placement of their son at Z for the 2d semester of the 2012-2013 academic year. The matter is now on appeal in Federal Court.
At the Attorneys’ request, I admitted as relevant but not controlling all of the exhibits and the entire transcript from the 2013 hearing, together with the 2013 IHO and 2014 SRO decisions (IHO Exhibit One; T 1246; T 1251). The IHO and SRO Decisions were admitted (D 65; D 66). The pages of the 2013 transcript numbered 1 – 1215 (IHO Exhibits Two – Six; T 1220). This transcript began at page 1216 and ended at 2003.
My findings of fact and conclusions of law [total # of pages herein - 54 ] are attached hereto and have been mailed to Attorneys cccccccc and dddddd by certified mail, return receipt requested. PLEASE TAKE NOTICE! Within 35 days of the date of this decision, the parent and/or school district has THE RIGHT TO APPEAL this decision to the State Review Officer of the NYS Education Dep't.
If a parent plans to appeal, then a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed (so that a certified copy of the hearing record may be prepared for submission by the school district). If a school district plans to appeal, then the district shall file a certified copy of the hearing record together with its petition.
An appealing party’s petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, then the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35- day period. 8 NYCRR 279.2(b).
Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. 8 NYCRR Part 279 contains the rules of procedure. Directions and forms can be found at: www.sro.nysed.gov/part279home.html. NYS Education Law 4404 et. seq.
Impartial Hearing Officer: Joan B. Alexander, Esq., , NY 14221 Date: 06/26/2015
PARTIES’ POSITIONS
PARENTS: Parents seek tuition reimbursement for their unilateral placement of their son (“X”) at Z for the 2013-2014 and 2014-2015 academic years during which the District failed to provide FAPE (T 1227-1228; T 1247). Parents allege that X’s hheeeeee, hhhhhhhhh, **(((((aaaaa and math skills, use of technology and hheeeeee / hheeeeee status have all improved since X was placed at Z. Parents allege that when X was a student in the District, X suffered from )))))))))) and ssssssss-ppppppp ffffffffff due to: (1) the harassment, bullying and isolation which X suffered while attending school at the District and (2) the District’s failure to provide X with an appropriate academic placement and with appropriate academic services, supports and/or program aides, modifications and/or accommodations (D 67, p. 1-2).
DISTRICT: The District alleges that it provided X with timely and appropriate IEPs for 2013 – 2014 (13/14) and 2014-2015 (14/15) (D 73; D 80), likely to produce educational benefit (T 12281229; T 1232). The District alleges that unlike the District: (1) Z does not provide !!!!!!!!!!!! to address X’s )))))))))) (T 1237), (2) Z’s environment is unnecessarily restrictive (T 1239), and (3) X has not made academic progress at Z during the relevant time period (D 69). The District does not contest Prong Three of the Burlington / Carter reimbursement test (D 69, p. 2).
ISSUES
Did the 13/14 IEP or the 14/15 IEP provide FAPE to X? Was Z an appropriate placement for X for either or both years?
DECISION
I find that the 13/14 IEP and the 14/15 IEP did not provide FAPE for X. I find that Z was an appropriate placement for X for both years.
ORDER
Within 30 days of the date of this decision, I direct the District to reimburse Parents for the cost of X’s tuition at Z for the 2013 - 2014 and 2014 – 2015 academic years. In order to receive tuition reimbursement, Parents must provide proof of payment.
FINDINGS OF FACT
X lives with Parents in the District. X’s eligibility for special education programs and services as a student with a learning disability is not in dispute (D 69; T 1227).
X is a 15 year old male student who is classified as a student with a learning disability. X is diagnosed as having aaaaaaaaaaaa (T 271-272; T 645-646; T 1023; T 1230; P H), which means that his fffffffffff disability impacts both ppppppppppping and wwwwwwwwwwww vvvvvvvvv (D 23, p. 2). aaaaaaaaaaa is a more severe disability than gggggggggg.
2006 – 2007 (1st grade): X was initially classified as a student with a sqqqqqqqqqqqqq impairment (P B). X was provided with hhhhhhhhhhhh (“uuuu”) in the general education environment (P B).
In 02/2007, Parents obtained an **(((((aaaaa %%%%%%%% evaluation (D 47). The neuro********* (####) administered standardized tests and determined that X: (1) had a full scale IQ score of 00, and a verbal hhhhhhhhh score of 00 (D 47, p. 4); (2) scored in the ####### range in Math Reasoning and Numerical Operations subtests (D 47, p. 6); (3) scored in the ####### range (i.e., about year behind his peers) in all areas of hheeeeee (e.g., Woooo ooooooooooooooooooord **(((((aaaaa, **(((((aaaaa [D. 47, p. 6]); (4) was deficient in ttttttttttttttttttttttttt (D47, p. 4); (5) had difficulties with ggggggggggggg; and (6) had ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc problems (D 47, p. 8-9).
2007 – 2009 (2d & 3d grades): X was placed in 12:1:1 special education classes in the District (P A, p. 1; P L, p. 1; D 19, p. 1). X was provided with uuuu and {{{{{{{{{ (“ssss”) (D 20, p. 2; D 21, p. 1; P A, p. 1), and qqqqqqq hheeeeee instruction (i.e., an **(((((aaaaa, **(((((aaaaa, **(((((aaaaa hheeeeee program) (T 184; T 963-964; T 970; D 20, p. 4; D 21, p. 3).
On 03/30/2009, the CSE recommended services for the last few months of X’s 00 grade year and the first 6 months of X’s 4th grade year. X was reading at the 0000000 grade level and working in math at the 00 grade level (D 19, p. 3; P L, p. 1).[1] X had significant documented regression in reading from 06/2008 to 09/2009 (D 19, p. 4). Despite his struggles, the CSE recommended placement for 4th grade in a general education collaborative teaching program (“CTIS” aka “ICT”) with an aide (D 19, p. 1). The CSE made the change because, in the Intermediate Building, the students in the 12:1:1 special education class functioned far below X (T 972).
At the 03/30/2009 CSE meeting, X’s Mother expressed frustration (D 19), and said that X was not prepared for and would not be successful in the general education environment based on his prior lack of success in said environment (P M; T 970). X’s Mother cautioned the CSE that it would be difficult if X were later returned to a 12:1:1 class. She predicted that, if that occurred, then X would have a negative and hheeeeee response, because X felt much more comfortable in the general education than in the special education environment (T 986-988).
One of the goals in the 03/30/2009 IEP was to compose a paragraph (D 19, p. 5; D 32, p. 5)2. The other goals were: rrrrrrrrrrrrrrrrrrrr, aaaaaaaaa and math (D 19, p. 5).
2009 – 2011 (4th & 5th grades): X transitioned from the Elementary Building to the Intermediate Building (P L, p. 1). X was classified as a.
In 11/2009, Parents obtained an **(((((aaaaa %%%%%%%% evaluation (####) (P H) as a follow-up to the 02/2007 evaluation (D 47). The same eeee******** as in 2007 (####) administered standardized tests and determined that X: (1) had a full scale IQ score of 00 and a verbal hhhhhhhhh score of 00 (P H, p. 4), (2) was functioning 0 years below current grade level expectations in **(((((aaaaa, hheeeeee and math (T 846; P H, p. 7-9), (3) had borderline woyyyyy **((((( (P H, p. 4) and (4) demonstrated no behavioral concerns and no hyperactivity (P H, p. 2, 4, 9).
The 77777777********* (####) determined that: (1) X had disabilities in , (2) X had impairments in: , (3) X is, (4) X progressed o year in math and in hhhhhhhhh during the years, ( 5) X’s verbal IQ and executive functioning were , and (6) hheeeeee instruction would be helpful for X (P H, p. 9 - 10).
On 03/24/2010, the CSE recommended services for the last few months of X’s 4th grade year and the first 6 months of X’s 5th grade year. Partway thru his 4th grade year, the aide in the CTIS classroom was withdrawn (D 18, p. 1, 4). X’s program included: (1) general education CTIS for English Hheeeeee Arts (“ELA”); (2) math in a 12:1:1 special education class (D 18, p. 1; D 19, p. 1); and (3) hheeeeee lab in a 12:1:1 special education class every 2d day (D 17, p. 6; D 18, p. 1; D 19, p. 1).
In 4th grade, X was hheeeeee at a beginning d grade level and working in math at a grade
3 level (D 18, p. 4; P L, p. 2). X was working on: (1) 3 digit addition and subtraction with regrouping, making progress in his carrying and borrowing skills, and showing inconsistency in accuracy when working **(((((aaaaaly, and (2) the concepts and computation processes of basic
2 Given a main idea, demonstrate improved **(((((aaaaa by hhhhhhhhh a paragraph that echoes the task’s main idea, provides 3-5 relevant supporting details in a logical order, and rewords the main idea in a concluding sentence.
3 On the 4th grade NYS assessments, X scored Level 1 and Level 2 in ELA and Math, respectively (P DD, p. 4). multiplication and division, and showing mastery in multiplying 2 digit numbers by one digit numbers, with no carrying (Id.; D 37, p.2; D 32, p. 7-8). His need for modeling, direct instruction and small group support was noted (D 18, p. 3-4).
One of the goals in the 03/24/2010 IEP (same as in the 03/30/2009 IEP) was to compose a paragraph (D 18, p. 6; D 32, p. 9).[4] The other goals were: aaaaaaaaa (same as in the 03/30/2009 IEP), and math (more advanced than in the 03/30/2009 IEP). [5]
In 03/2011, the District school ********* (PPPPPPPPP) administered a standardized test and determined that X “continued to demonstrate difficulty in the areas of hheeeeee and math.” (D 46, p. 2) X scored at a 0000000000 grade reading level in **(((((aaaaa, rrrrrrrrrr and hhhhhhhhh (D 46, p. 3). X’s vvvvvvv disability continued to impact his ability to be successful, despite intense intervention (D 46, p. 3).
A comparison of the 03/2011 (PPPPPPPPP) District testing and the 11/2009 (####) **(((((aaaaa testing demonstrates that X made minimal academic progress, and in some instances regressed, between the beginning of 0th grade (11/2009) and the end of 0th grade (03/2011), particularly in reading: (1) his Lerrrrrr/**(((((aaaaa score went from a 000 grade equivalency to a 000 grade equivalency; (2) his **(((((aaaaa score went from a 000 grade equivalency to a 000 grade equivalency; and (3) his Peeeeeeeeeeeeeeeeeee score went from a 000 grade equivalency to a 000 grade equivalency (P H; D 46). Between 1st grade and 5th grade, X progressed from reading on a kindergarten - 1st grade level to reading on a 000 grade level (T 642-643).
The District school ********* (PPPPPPPPP) explained to X’s Mother that she had great concern for X’s lack of progress. PPPPPPPPP said that when X entered ***** School in sixth grade, she (PPPPPPPPP) expected him to “hit the wall” (T 982).
In 03/2011, the ;;;;;;;;;;********* (####) who evaluated X in 2007 (D 47) and 2009 (P H): (1) noted that X failed to progress in reading skills as measured since her 2009 testing, and (2) recommended that (a) the District continue tttttttttte for X and consider a ryyyyy program for X as an alternative to qqqqqqq, and (b) X’s Mother consider enrolling X in Z’s summer program (P G).
On the 03/28/2011 IEP (in the 2d semester of his 5th grade year) and on the 08/11/2011 IEP (at the start of his 6th grade year), the CSE noted that X’s reading level was at beginning 00 grade, and X’s math level was at 000 grade (D 17, p. 2-3; D 15, p. 2-3).[6] X was: (1) making progress in multiplying multi-digit numbers by single-digit and multi-digit numbers, (2) completing assignments that included addition, subtraction, and multiplication involving re-grouping and double digit multiplication , and (3) “converting between fractions, decimals and percents based on tenths and hundredths” (D 32, p. 8-9).
One of the goals in the 03/28/2011 and 08/11/2011 IEPs was to compose a paragraph (D 17, p. 5;
D 15, p. 5; D 32, p. 13).[7]
Past math and aaaaaaaaa goals were not repeated. Instead, they were re-worded: (1) **(((((aaaaaly use correct processes to solve math problems at his developmental level; (2) increase hheeeeee rrrrrrrrrr by kkkkkkkkkk at his instructional level (D17, p. 5; D 15, p. 5-6). The rrrrrrrrrrrrrrrrrrrr goal that had been present in the 03/30/2009 IEP (D 19, p. 5), and then dropped from the 03/24/2010 IEP (D 18, p. 6), did not re-appear.
During the summer of 2011, X attended Z’s summer program, and he “flourished there as he was no longer living in fear wondering if the other students knew that hhhhhhhhh or that he wasn’t as academically gifted as the next student…could be himself without the constant pressure to hide the fact that he was academically low” (P L, p. 2; D 34).
2011 – 2012 (6th grade): X left the District’s Intermediate Building and moved up to the District’s ***** School (P L, p. 2). Despite X’s significant struggles in reading and math, the CSE recommended his continued placement in the general education environment (D 17, p.6). Surprisingly, the CSE recommended X’s removal from the fulltime 12:1:1 special education class for math, and a reduction in his Consultant Teacher services for ELA (D 17, p. 6).
Thus, X began 6th grade in a CTIS program for reading, math and ELA, and was provided: (1) 12:1:1 pullout for math 30 minutes every 2d day, (2) 12:1:1 pullout for hheeeeee 30 minutes every 2d day, and (3) group !!!!!!!!!!!! once/month 30 minutes (D 13, p. 6; D 15, p. 6; D 17, p. 6).[8] X’s Mother thought that X was still being instructed in qqqqqqq (T 1121-1122) but the IEP indicates neither a specialized hheeeeee program nor small group instruction (D 17, p. 6-8).
In 6th grade, X continued to struggle in reading and math (T 69). The 10/11/2011 IEP reported X reading at a beginning 00 grade level (D 13, p. 3) but the 11/23/2011 IEP reported X reading at a 00 grade level (D 12, p. 3).[9] The 10/11/2011 IEP reported X working at a 00 – 00h grade level in math (D 13, p. 3) but the 11/23/2011 IEP reported that X is well below grade level with basic computational skills and is working on mastering multiplication facts, but has only learned his 2s and 3s (D 12, p. 3).[10] X required assistance getting started, needed prompting to continue working thru an assignment, didn’t know what process was needed to solve a problem and did best when there were many examples modeled for him (D 32, p. 11).
The same 3 goals from the 03/08/2011 and 08/11/2011 IEPs (D 17, p. 5; D 15, p. 5) (including the paragraph composition goal which dated from the 03/30/2009 IEP - D 19, p. 5) were repeated in the 10/11/2011 and 11/23/2011 IEPs (D 13, p. 5; D 12, p. 5; pls see p. 6 herein).
On 11/23/2011 (i.e., after 2-3 months of 6th grade), the CSE recommended that: (1) starting in 01/2012, X be placed full-time in a 12:1:1 special education class (T 985-987; D 12, p. 6), and
(2) monthly group !!!!!!!!!!!! be continued (D 12, p. 6). Like the 03/08/2011 and the 10/11/2011 IEPs, the 11/23/2011 IEP indicates neither a specialized hheeeeee program nor small group instruction (D 12, p. 6-8).
X’s Mother agreed with the CSE that a 12:1:1 special education class would be more academically appropriate (T 986-987), but she was uneasy about informing X that he would be returned to a 12:1:1. X’s Mother knew that X was well adjusted hheeeeeely and hheeeeeely in general education, and his return to a 12:1:1 would likely be difficult (T 986-987).
On 01/10/2012 and 01/31/2012, an **(((((aaaaa 55555555 ********* (IIIIIIIII) evaluated X to determine X’s educational needs (D 45). The ********* (IIIIIIIII) reviewed the 2007 (D 47), 2009 (P H) and 2011 (D 46) results, and administered standardized tests (D 45, p. 1-2).
IIIIIIIII diagnosed ddddddddd (D 45, p. 11) and determined that: (1) X’s abilities were in the ####### range, (2) X’s thinking ability and %%%%%%%% processing were in the ####### range, (3) X’s verbal ability and cognitive efficiency were in the aaaaaaaaaaa (D 45, p. 5; T 832-836), (4) X’s reading and math achievement was at a 00 – 00 grade level (D 45, p. 4, 5, 10) and (5) X was failing to develop hheeeeee skills (D 45, p. 11; T 832-836). IIIIIIIII recommended intensive year-round **(((((aaaaa hheeeeee instruction and nnnnnnnnnnnnnnn instruction (D 45, p. 10-12).[11]
After X’s placement was changed to a 12:1:1 setting, and as a result of the change, X began to experience extraordinary amounts of stress and )))))))))) (T 986-993; T 1153). X’s Mother had an almost daily struggle to get X to school, and there were some mornings she literally dragged him out of bed (T 993-994). X questioned why his parents continued to send him to a school that caused him extreme stress and where he was not learning (T 993-994; T 1848-1849).
Some of the other students in the 12:1:1 class were disruptive, and their behavior upset X (T 1121-1122). X’s friends from general education abandoned him when he was placed in special education (T 1853). The school !!!!!!!!!!!! (N) recognized that her services were not effective, and she believed that X was not going to ‘open up’ to anyone associated with the District (T 1153; T 1862). X’s Mother agreed (T 1908). In addition, X wanted to avoid in-school !!!!!!!!!!!! because he didn’t want to draw negative attention to himself by being pulled from class by a !!!!!!!!!!!! or by crying in school (T 1909). X sometimes cried during !!!!!!!!!!!! because he was discussing things that upset him (T 1909). X’s Mother reported everything to District staff (T 1854-1855). The school !!!!!!!!!!!! (N) suggested that Parents seek cccccccc !!!!!!!!!!!! in order to address X’s stress and ))))))))))
relating to his academic placement, and she provided a list of !!!!!!!!!!!! !!!!!!!!!!!!s (T 1153-
1154).[12]
By letter dated 02/17/2012, Parents informed the District Superintendent about X’s “despair” and requested that he phone them (P L, p. 1, 4). They wrote that when they told X that he was being moved from general education to a 12:1:1, X was “absolutely crushed, commenting that he never wanted to go back to school again and just wanted to die” (P L, p. 3). They wrote that: “It is now my battle every morning to peel him from bed and literally push him on the bus. My son now lives in fear of being identified as a ‘!!!!!!!!!!!!’. He has been bullied on numerous occasions just for simply being a student in the 12-1-1 class. Peers … have chastised him for being placed in this class … he has to put up with ridicule and verbal abuse every day” (P L, p. 3).
!!!!!!!!!!!! !!!!!!!!!!!! (02/2012 – 01/2013)
In 02/2012, X had his 1st session with an !!!!!!!!!!!! !!!!!!!!!!!! (SS) (T 917). X ‘saw’ said !!!!!!!!!!!! (SS) six times (i.e., 02/2012, 03/2012, 03/2012, 04/2012, 09/2012, 01/2013) (T 917; T 931)
Parents’ health insurance did not pay for the sessions with !!!!!!!!!!!! !!!!!!!!!!!! (SS) (T 955). Parents paid $100/hour out of pocket (T 1158; T 1865; T 1895). The CSE did not offer !!!!!!!!!!!! !!!!!!!!!!!! as an IEP service (Id.). X’s Mother would have preferred that X see SS more often, but it was a financial strain for X’s family to pay for the !!!!!!!!!!!! (Id.).
During said !!!!!!!!!!!! sessions, X expressed jjjjjjjjjjj and )))))))))) regarding his school placement, including teasing from peers (T 1863), and difficulty coping with his diagnosis of !!!!!!!!!!!! (T 918; T 922-924; T 929-931; P K). X described himself as being “stupid” and unable to learn (T 918; T 921; T 930).
The !!!!!!!!!!!! (SS) stated that X “was very articulate in identifying that he did not know where he fit in” (T 921). X struggled but didn’t fit in with his disabled peers or with his non-disabled peers (T 923; T 945; T 1151-1152; T 1852). X was not happy about going to school (T 954).
A significant source of X’s )))))))))) was his placement in the 12:1:1 special education class (T 920-921; T 975; T 986-993; T 1420 – 1421; T 1957-1959). That placement removed X from the general education environment, where, although his academic needs could not be appropriately met, X felt comfortable hheeeeeely and had had a group of friends (T 943; T 975). X did not have these sorts of hheeeeee difficulties when he was in general education (T 1850; T 1853; T 1857).
X consistently expressed refusal to attend school on various days during both 6th and 7th grade (T 397-398; T 925; T 931; T 1423). X described situations in school where he felt it necessary to duck out of class early so that his peers would not see him in his special class (T 1863), because he wanted to avoid being called names in the school hallway or on the school bus such as
“!!!!!!!!!!!!” (T 922-923; T 1854) or “!!!!!!!!!!!!” (T 1161; T 1960-1961; T 1964). X told the !!!!!!!!!!!! (SS) and his Mother that while having friends at his own home to celebrate his birthday, one of his “friends” called him a “!!!!!!!!!!!!” and then, X reacted by resorting to a fit of rage, throwing items, and hitting and screaming (T 922; T 1156-1157).
The !!!!!!!!!!!! (SS) described X’s hheeeeee / hheeeeee issues as ‘mmmmmmmmm (T 950), confirmed that the ongoing teasing and harassment by his peers had a profound impact, and opined that these experiences negatively affected X’s ability to learn (T 922-924; T 929-931).
X’s significant )))))))))) continued despite the !!!!!!!!!!!! (T 400; T 931). As late as the second to last !!!!!!!!!!!! session (i.e., in the fall of 7th grade), X was displaying great )))))))))) and frustration in his 12:1:1 class (T 931). X continued to struggle with hheeeeee / hheeeeee issues until 01/2013, when he contemplated his transition from the District to Z (T 931).
2012 HEARING REQUEST & 2012 CONSENT DECREE
On 03/21/2012, Parents filed a hearing request (D 5). On 06/04/2012, Parents and the District settled their dispute with a Consent Decree (D 6).
That Decree provided for an IEP, which itself provided: (1) continuation of the 10/11/2011 IEP (D 6, p. 1; D 13) with the addition of in-school individual !!!!!!!!!!!! once/week 30 minutes (D 10, p. 6; D 11); (2) 1:1 specialized hheeeeee instruction (qqqqqqq) 4x/week 60 minutes, during the 2012 summer by an !!!!!!!!!!!! hheeeeee specialist (+++++) (T 84), (3) new evaluations (i.e., **(((((aaaaa hheeeeee, **(((((aaaaa central %%%%%%%% processing, **(((((aaaaa assistive technology all at District expense & in-District math rrrrrrrrrr), and (4) a CSE meeting to consider: (a) the results of those new evaluations, (b) the results of a 01/2012 pppppppp evaluation (IIIIIIIII) (D 45) and (c) info to be provided by the 2012 summer qqqqqqq instructor (+++++). (See fn 7)
On the 06/04/2012 IEP, X was reported to be reading, still, at a 00 grade level (D 10, p. 3) , and the description of his math performance is identical to the description in the 11/23/2011 IEP (Id.; D 12, p. 3; pls see p. 6 herein).
Again, the same 3 goals from IEPs dating as far back as 03/08/2011 were repeated precisely (D 10, p. 5-6; D 17, p. 5). Again, one of the 3 goals was paragraph composition; this goal dated to 03/30/2009 (D 19, p. 5; pls see p. 6 & p. 7 herein).
0n 05/23/2012, as per the afore-mentioned Consent Decree, an **(((((aaaaa hheeeeee evaluation was performed at District expense (D 44). The &&&&&&& (@@@@@) administered standardized tests and reviewed evaluations dated 2007 (####), 2009 (####), 2011 (PPPPPPPPP) and 2012 (IIIIIIIII), and school records.
@@@@@: (1) identified X as an individual with a hhhhhhhhhh Disability (tttttttttt!!!!!!!!!!!!,) (D 44, p. 10), (2) noted that X now performed at a 00 – 00 grade level (D 44, p. 3-8), (3) noted that X’s nonverbal thinking and reasoning abilities were ####### for his age (D 44, p. 4; T 668-670), (4) questioned the continued use of qqqqqqq in light of X’s rrrrrrrrrr progress and X’s sssssssssssssssssssssssssssssss problems (D 44, p. 2, 11, 13; T 644) and (5) suggested that, if qqqqqqq were to be continued, then X should be instructed by a more experienced wwwwwww teacher (T 671-674)[13] and with particular technology, or in a different school or in a more intense, **(((((aaaaa and different instructional method (D 44, p. 11, 13).
@@@@@ opined: “the severity of [X’s] ggggggg disability or !!!!!!!!!!!! and the extent of his jjjjjjjjjjjj problems and related learning abilities mandate intense, deliberate instruction in rrrrr learning and related hheeeeee and wwwwwwwwws. A total immersion academic environment designed for students with his learning disability…[is] in his best interest.” (D 44, p. 13).
In 06/2012, as per the aforementioned Consent Decree, the District school ********* (PPPPPPPPP) completed math testing (D 43). The test consisted of a multiple-skills curriculum - based computational probe involving addition, subtraction, multiplication, and division of facts 0-9 (D 43). Results revealed that X had symbol confusion of addition / multiplication signs, and deficits in basic math computation (D 43).
2012 – 2013 (7th grade): During the 2012 summer, when the !!!!!!!!!!!! hheeeeee specialist (+++++) began working with X, she found it necessary to begin in qqqqqqq from the very first level (D 37, p.1) because “X was unable to clearly define or even guess at some very basic elements of hheeeeee structure, such as what a vowel is and what a consonant is. There was also confusion about what the terms “long” and “short” meant when referring to a vowel.” (P P, p. 1).
The hheeeeee specialist (+++++) said that such concepts “should have been familiar to him.” (D 37, p.1). +++++ noted that X said that he never had been instructed to use the techniques that are so important for successful ) intervention:
(P P, p.1).
Based on ####’s 03/2011 recommendation (P G), @@@@@’s 05/2012 recommendation (D 44, p. 11, 13), +++++’s observations about X’s skills when she started working with him, and input from the CSE Chair, X’s Mother questioned whether qqqqqqq had been taught properly prior to 07/2012 and whether it was an appropriate method for X (T 1134; T 1910).
THE 08/20/2012 IEP (D 9)
On 08/20/2012, as per the Consent Decree, the CSE held a program review and recommended a new IEP (D 9; D 58). Available to the CSE were: (1) an **(((((aaaaa hheeeeee evaluation (@@@@@) dated 05/23/2012 (D 44; D 9, p. 2), (2) an **(((((aaaaa hheeeeee evaluation (IIIIIIIII) dated 01/2012 (D 45), (3) an **(((((aaaaa speech and hheeeeee evaluation (BHSC) dated 08/2012 (D 42), (4) the District school *********’s (PPPPPPPPP) assessment of math skills dated 06/2012 (D 43) and psycho-educational re-evaluation dated 03/2011 (D 46), and (5) an **(((((aaaaa %%%%%%%% evaluation (KLT) dated 08/2012 (D 40).
The 08/20/2012 IEP recommended: (1) placement in a 12:1:1 special education class (same placement as per the 11/23/2011 IEP [D12; T 85]), (2) 1:1 **(((((aaaaa, **(((((aaaaa, **(((((aaaaa specialized hheeeeee (qqqqqqq) instruction 4/6 days 50 minutes (D 9, p. 7; T 8687), (3) uuuu pull-out individual 2/6 days 30 minutes, (4) calculator for computation when computation isn’t being assessed, (5) mis**(((((aaaaa not penalized when **(((((aaaaa isn’t being assessed, (6) copies of class notes, (7) monthly consultation between a hheeeeee specialist and a special education teacher, (8) monthly communication with Parents and (9) program and testing modifications, accommodations and assistive technology, including **(((((aaaaa software (D 9, p. 7-10).
Statements in the IEP reflect both the District’s data, and staff’s concerns about X’s academic needs: (1) X had not made substantial progress (D 9, p. 3); (2) X continued to read at the 00 grade level (Id.); (3) X “still struggles with mmmmmmmmm and seems to have regressed with nnnnnnnnnn” (Id.) and (4) X was well below grade level with basic computational skills and was working on mastering multiplication facts, but has only learned his 2s and 3s (Id.; same description of math performance as in IEPs dated 11/23/2011 [D 12, p. 3] and 06/04/2012 [D 10, p. 3]).
Despite the math deficits revealed by the District’s (PPPPPPPPP’s) 06/2012 testing, the CSE did not make any changes to X’s math services.
The 08/20/2012 IEP repeated the “paragraph composition” goal from the 06/04/2012 IEP (D 32, p. 13, 16), and replaced the other 2 goals from the 06/04/2012 IEP with 6 new goals.[14] There was no evidence of mastery of the 2 goals that were dropped.
Of the 6 new goals, there was one math goal: “increase progress in basic math skills as demonstrated by making progress toward the trend line with 5 consecutive points moving toward the trend line” (D 9, p. 6). The District admittedly never implemented this goal (T 413-414).
The 08/20/2012 IEP did not list !!!!!!!!!!!! as a service and did not provide a !!!!!!!!!!!! goal, but X received kkkkkkkkkkkkkkkl !!!!!!!!!!!! (D 10, p. 6; T 94-96; pls see fn. 15). In the IEP section concerning hheeeeee needs, it was noted that although X’s relationships with his peers and adults are age - appropriate, X struggles with being in the self-contained class, and is very self - conscious about what his friends will say or think if they know that he is in the selfcontained class (D 9, p. 4).
The CSE discussed X’s continued placement in the 12:1:1 special education class (D 9), but considered no other options (T 1139). The CSE Chair (J) said that the only other option was Z , but the CSE could not place X there, and X’s Mother would need to “sue” the District and seek reimbursement (T 1139-1140).
Despite multiple concerns about the continuation of qqqqqqq (pls see p. 10 herein), the CSE recommended that X continue to receive 1:1 qqqqqqq instruction 4/6 days 50 minutes (T 87). The CSE led X’s Mother to believe that this service would be provided exclusively and entirely, as it had been during the 2012 summer, by the !!!!!!!!!!!! lllllllllllll (+++++) (T 87; T 1141). However, starting in the fall of 2012, a District special education teacher (**) filled in for +++++ (T 432-433; T 1150). X did not receive qqqqqqq instruction 4/6 days from +++++ (Id.; T 88; T 99; T 100-101; T 432-433) but the extent to which ** filled in for +++++ is not clear. The special education teacher (**) did not review any historical data regarding X (except his most recent IEP), did not review X’s progress on prior goals, and did not know the grade level on which X was functioning when she began working with him (T 449-450). X did not learn as well with ** as he learned with +++++ (T 1147).
In late 08/2012 or early 09/2012, just prior to the start of the 2012-2013 academic year, X received a letter from the District informing him of the “team” he would be on. It is tradition that upon receipt of such letter, X and his friends will call each other to learn whether or not they are on the same team. X was placed on Team *****. After excitedly calling his friends, said excitement turned to )))))))))) because X learned that the only students on Team ***** were 12:1:1 students (T 1143-1144). X began the 2012 – 2013 academic year in a 12:1:1 special education class at the District’s ***** School (D 8 – D 10).
THE 11/20/2012 IEP (D 8)
In 09/2012, X’s )))))))))) related to his 12:1:1 placement increased. X’s Mother struggled almost daily to get X to school, and sometimes she could not get him out of bed (T 397-398; T 993994; T 1158-1160; T 1423). “Things were getting harder and harder,” and she made more phone calls to school about X’s )))))))))) (T 1151; T 1160).
X was teased, bullied and hheeeeeely rejected by his non-disabled peers (T 1161; T 1853-1854). It had a profound impact on X, including X’s ongoing refusal to go to school, the change in X’s temperament, X’s persistent )))))))))) related to attending school, and X’s hheeeeee isolation. It escalated from verbal abuse, public humiliation and hheeeeee rejection to a physical / verbal altercation between X and one of his peers on the school bus (T 1960; T 1964). X had no friends in 01/2013, when he left the District (T 1848- 1849; T 1852-1853; T 1865; T 1881).
In the fall of 2012, X wanted to play football on the school team. Because of his learning disabilities, he couldn’t learn the plays. X was isolated on the sidelines. His teammates wouldn’t talk to him. X’s Mother sought help from the ***** School Principal (RE). RE arranged for help but it was insufficient. It was another bad hheeeeee experience for X (T 11611162). As another example of hheeeeee rejection, when X attempted to sit at lunch with his nondisabled peers, those peers refused to let him sit with them (T 1151-1152; T 1853-1855).
X felt isolated in special education (T 1193; T 1851). X’s 12:1:1 classmates presented with hheeeeee / hheeeeee / behavioral concerns that were drastically different from X. The 12:1:1 classmates were oppositional and disruptive. Their behaviors distracted X from learning and made it difficult for him to concentrate (T 390-393; T 923 T 1120; T 1190). X refused to sit with his 12:1:1 classmates during lunch or for other activities (T 1151; T 1854). Throughout the 2012 calendar year (i.e., X’s placement in the 12:1:1), X’s Mother continuously reported these incidences and her concerns to District staff, including X’s special education teacher (**), school !!!!!!!!!!!! (N), ***** School Principal (RE), the CSE chair (J), and the District Superintendent, but no meaningful action was taken (T 395-396; T 1160; T 1854-1855; T 1860-1861; P L, p. 3). X was **(((((aaaaa his reports to his Mother (T 1899); and, in turn, X’s Mother was **(((((aaaaa in her reports to District personnel (T 395-396; T 1956; T 1960). The CSE Chair (J) called X’s )))))))))) “one of [his] greatest issues.” (T 136).
The District responded by having X leave his classes early and / or arrive at his classes late in order to avoid hallway interactions with the perpetrators (T 144; T 385; T 447-448; T 18621863; T 1958). X’s special education teacher (**) allowed X to move away from the door in an effort to hide from his non-disabled peers (T 397).
These responses, as well as the !!!!!!!!!!!! !!!!!!!!!!!!, did not alleviate X’s )))))))))) (T 400; T 1862-1863; T 1895-1896). Instead, the District’s response made matters worse for X by confirming to X that he should “hide” from the perpetrators (T 1863-1864; T 1882).
On 11/20/2012, the CSE met (D 8). X’s Mother: (1) said that X is ashamed of his disability, and
(2) expressed concern about X’s feelings toward school (D 23, p. 2). X’s special education teacher (**) reported that X does not use assistive technology when it makes him look different from his peers (D 23, p. 2). X’s Mother and the District discussed Z (T 1163).
One of purposes of the 11/20/2012 CSE was to address X’s )))))))))) (T 94). Nevertheless, no changes were made to X’s services to address X’s )))))))))).[15] There was no !!!!!!!!!!!! goal (D 8, p. 6-7), and although !!!!!!!!!!!! had been recommended starting in 09/2011, there’d never been a !!!!!!!!!!!! goal (pls see fn 4, herein).
The 08/20/2012 IEP (D 9) and the 11/20/2012 IEP (D 8) were substantially identical in placement, goals and related services (compare D 8, p. 6-7 with D 9, p. 6-7 and D 23, p. 2; T 103).
To provide context to these substantially identical goals, note that the CSE Chair explained that it’s unusual for goals to be repeated precisely and to be carried over from one IEP to the next. It occurs only when a goal isn’t mastered and when it’s reasonably expected that a student will achieve the goal in the next 12 months (T 1321-1322). Thus, repetition did not indicate progress. [16]
X continued to struggle, especially in hheeeeee and math (T 1147-1150). District staff expressed significant concern about X’s lack of academic progress (T 790; T 810; T 1168; T 1847-1848; T 1867; T 1873-1874; P J) and some of their data showed regression (T 796-797). At a team meeting, X’s Mother was told that there’d been no academic progress (T 1873).
The few differences between the 11/20/2012 IEP (D 9) and the 08/20/2012 IEP (D 8) mostly related to the description of X’s academic needs and present levels, and those differences demonstrated the District’s concern about X’s lack of progress: (1) The description of X in the smaller class setting added the sentence: “X often needs support from the classroom teacher or classroom aide with clarification of directions or prompting to complete a task” (D 8, p. 3); (2) The description of X’s 1:1 and small group support in hheeeeee added the phrase “but progress has not been substantial” (D 8, p. 3); (3) In the hheeeeee levels, use of text to speech software was noted twice (D 8, p. 3 and D 8, p. 4) and 7 lines were added, describing qqqqqqq tutoring by the !!!!!!!!!!!! hheeeeee specialist (+++++) (D 8, p. 4); (4) **(((((aaaaa software was added to the assistive technology list (D 8, p. 9); (5) a hheeeeee program was added, but it was not implemented (D 8, p. 8) 17; and (6) monthly consult between the !!!!!!!!!!!! specialist (+++++) and the special education teacher was listed twice (likely it was an error – see D 8, p. 10).
Although the frequency of 1:1 hheeeeee instruction isn’t clear, instruction by the !!!!!!!!!!!! specialist (+++++) was hheeeeeed from 4/6 days to 3/6 days (T 101).
A consultant to the District (+++++) participated in the 11/20/2012 CSE meeting by telephone (D 23, p. 2). She (+++++) is an associate professor of school psychology and an expert in hheeeeee disabilities (T 240 - 244; T 1295-1296). She (+++++) never met X and didn’t evaluate X (T 246). +++++ recommended replacing qqqqqqq with iiiiiiiiiiii (T 97; D 23, p. 2). About 18 months later, she (+++++) testified that: (1) teaching both programs in combination wouldn’t hurt (T 276) and (2) from 09/2012 to 11/2012, X showed no progress in rrrrrrrrrrrrrrrrrrrr (T 347-349; P Z, p. 23).
iiiiiiiiiiii and qqqqqqq are both **(((((aaaaa instructional hheeeeee programs. iiiiiiiiiiii addresses rate of information retrieval (aka **(((((), automaticity, **(((((aaaaa, engagement with hheeeeee and **((((( (T 443; T 1294-1296). qqqqqqq is a reconstructed hheeeeee program that addresses rrrrrrrrrr, **((((( and word parts, but it doesn't address **((((( to the extent that iiiiiiiiiiii addresses **((((( (T 1294). **((((( is a significant issue for X (and that is typical for students with aaaaaaaaaaaa) (T 1294-1296). According to the CSE Chair (J), the two programs complement each other (T 1294), and the CSE recommended instruction in both of them together (rather than one or the other) (T 97).
X struggled for years in math. As a 7th grader, X was not working on the same math areas as his non-disabled peers (e.g., algebra, multiplying and dividing decimals, probabilities) (P EE; D 7; D 8; D 32: T 1202-1203). Instead, in 11/2012 and 01/2013, as a 7th grader, X was struggling in 2 reading programs were listed in D 8, p. 7 – 8. The IEP didn’t specify the programs, but they were qqqqqqq and iiiiiiiiiiii. qqqqqqq alone was implemented in 2012. In 2012, District staff hadn’t yet been trained in iiiiiiiiiiii (T 97-100; T 115-116). his addition and subtraction skills while working with single digit by single digit functions (D 32, p. 14; D 33). X had regressed in his math skills as compared to his skills in 2011 (T 342343; T 406; pls see herein, p. 5-6).
X’s grades were a reflection of X’s performance in the highly modified curriculum that was offered to him as a result of his disability (T 415).
THE 01/25/2013 IEP (D 7)
Between 11/2012 and 01/2013, X continued to make little academic progress and to experience )))))))))) toward school (T 1160, 1168).
By report dated 12/04/2012 (D 41) and as per the 06/04/2012 Consent Decree (T 79), the UB Center for Assistive Technology recommended: (1) X’s continued use of a laptop, (2) additional RAM installed on said laptop, (3) specific software programs for math and hheeeeee, and (4) training on software use for both X and his educational team (D 41, p. 7).
The 01/25/2013 CSE was the first CSE meeting subsequent to that evaluation (T 80), but the 01/25/2013 IEP did not provide training on software use (D 7, p. 12-14).[18] Neither X nor his 6th & 7th grade special education teacher (**) (T 354-355) was trained on the use of or knew how to use assistive technology (T 419; T 1200; T 1912; T 1914). Although the IEP recommended use of assistive technology, X’s teacher (**) and X said that it was rarely used (T 419;T 1200).
The availability, training and use of assistive technology is an important part of educational programming for students with a hheeeeee - bbbbbbbbbb disabilities, especially in hheeeeee (T 690-691; T 1533; T 1812). It’s critically important for getting X thru his academics (Id.) X’s nonuse of assistive technology was related to his )))))))))) as well as his, and the staff’s, lack of training and knowledge (T 418-419; T 1200; T 1912).
By letter dated 01/15/2013, Parents notified the District of their intent to: (1) remove X from the District’s program because it did not meet his needs in hheeeeee, **(((((aaaaa and hheeeeee development, (2) unilaterally place X at Z, and (3) seek tuition reimbursement (D 1).
In response, on 01/25/2013, the CSE scheduled (D 51) and held a program review at which Parents were present (D 22; T 108 – 110), and recommended a new IEP (D 7).
On 01/25/2013, the CSE discussed a report from the District’s consultant (+++++) which concluded that X made substantial progress in hheeeeee at the 00 grade level in the 1st semester of his 7th grade year (T 256; D22; D 31, p. 8, 12; D 36). Said report: (1) was based exclusively on +++++’s analysis of AIMSweb, RCBM and MAZE data which the District provided to her (T 246; T 256; T 270; T 331), (2) noted that X’s rate of progress at the 00 grade hheeeeee level was less than one would expect whether he was compared to his non-disabled 00h grade chronological peers or to his non-disabled 00 grade level hheeeeee peers (T 259), and (3) predicted that X would be hheeeeee at the 00h grade level if his progress continued after 01/2013 at the 00 grade level at the same rate as it had between 11/2012 and 01/2013 at the 00 grade level (D 7, p. 7; D 36, p. 1; T 262- 264; T 349-350).
The District’s consultant (+++++) was not present at the 01/25/2013 CSE meeting and did not participate by telephone (D 7). On 01/25/2013, Parents were provided with +++++’s report (which was dated 01/22/2013), but they had no prior notice of said report (T 1877).
On 01/25/2013, the CSE also discussed a written report from the !!!!!!!!!!!! ppppp specialist (+++++) which concluded that X made substantial progress in hheeeeee, **(((((aaaaa and handhhhhhhhhh between 07/2012 and 01/2013 (D 37). Said report: (1) was based on +++++’s experience teaching X 1:1 in the qqqqqqq program, (2) noted that X had achieved the 00 grade hheeeeee level (which corresponded to the 0th qqqqqqq level), and (3) predicted that X would progress another 0 levels in qqqqqqq if his 1:1 instruction were to be continued through 06/2013 (D 37, p. 2). +++++ told the CSE that X mastered 00 grade material (D 32, p. 3, 14; D 22, p. 2).
The !!!!!!!!!!!! specialist (+++++) also noted that: (1) when she started teaching X in 07/2012, she had to start from the beginning (aka the 1st level) of qqqqqqq because X demonstrated significant confusion with many basic terms and concepts (especially considering that he had been instructed in qqqqqqq since 00 grade – pls see p. 10 herein), (2) X is capable of learning through **(((((aaaaa intervention, although his learning required both a great deal of repetition and daily intensive sessions, (3) X always gave his best effort, and was cheerful and engaged, (4) new material was best presented to X directly, repetitively, slowly and incrementally, and in a way that qqqqqqqqqqqqqqqqqq, and (5) it took a great deal of time to lay these foundational pieces in such a way that X could learn (D 36).
The 11/20/2012 IEP noted that X was reading at the 00 grade level19 and was making minimal, if any, progress (D 8, p. 3). Surprisingly, on 01/25/2013, the CSE claimed that X was reading at a 00 grade level (D 7, p. 7). The CSE was aware that Parents were skeptical of the District’s claims of X’s progress (T 798; T 1166-1168; T 1413; T 1879- 1880).
The 01/25/2013 IEP (D 7) provided for: (1) placement in a 12:1:1 special education class 20, (2) uuuu individual 2/6 days 30 minutes with the goal of improving %%%%%%%% **((((( (T 1296), (3) individual !!!!!!!!!!!! 2x/month 30 minutes with the goal of addressing issues, and reducing both )))))))))) and (T 1297; T 1301; D 7, p. 10 # 2), (4) calculator for computation when computation isn’t being assessed, (5) mis**(((((aaaaa not penalized when **(((((aaaaa isn’t being assessed, (6) copies of class notes, (7) monthly consultation between a hheeeeee specialist and a special education teacher, (8) program and testing modifications,
19 Past IEPs also reported that X was reading at the 00 grade level: 08/20/2012 (D 9, p. 3); 06/04/2012 (D10, p. 3); 11/23/2011 (D 12, p. 3); 03/24/2010 (D 18, p. 4); 03/30/2009 (D 19, p. 3).
20 Following the same NYS standard curriculum as students who are not classified but with more repetition and with accommodations based on student need (T 1294) and including math instruction (T 1298). accommodations and assistive technology, and (9) two types of 1:1 **(((((aaaaa, **(((((aaaaa, **(((((aaaaa specialized hheeeeee instruction (qqqqqqq and iiiiiiiiiiii), but iiiiiiiiiiii would be implemented 2/6 days starting on 02/01/13, and qqqqqqq would then be reduced from 4/6 days to 3/6 days, for a total of hheeeeee instruction 5/6 days 50 minutes (T 112-114; T 118-119; T 358359; T 1231; D 7, p. 1, 11-13).
In the “present levels of performance” but not the “services”, “related services” or “supplementary aids” sections, the 01/25/2013 IEP noted that, in addition to 12:1:1 math instruction, X received ppp 1:1 instruction targeting foundational math 30 minutes 2-3 times/6 days (D 7, p. 7; T 117; T 122-123). Neither the 01/25/2013 IEP nor past IEPs provided ppp math or 1:1 math. The CSE Chair (J) didn’t know if X received 1:1 math when the 11/20/2012 IEP was in effect (T 102-103). X testified that he didn’t ever have 1:1 math insruction at the District (T 1202).
Thus, the only changes in services between the 11/20/2012 IEP (D 8) on the one hand, and the 01/25/2013 IEP (D 7) on the other hand, was the change in the reading instruction from qqqqqqq 4/6 days to iiiiiiiiiiii 2/6 days and qqqqqqq 3/6 days. The services in the 08/20/2012 IEP (D 9) were almost identical to those in the IEPs that followed it.
The 11/20/2012 IEP (D 8, p. 6-7) had the same 7 goals as the 08/20/2012 IEP (D 9, p. 6) They were: paragraph composition (#7), %%%%%%%% **((((( (#6), math (#2), **(((((aaaaa (# 1), **(((((aaaaa (# 3), syllabication (#4) and aaaaaaaaa (#5). (Re repetition of goals, pls see p. 6, p. 7, p. 9, p.11, p. 13 herein.)
X mastered 3 goals in the 11/20/2012 IEP. They were: **(((((aaaaa (#1), **(((((aaaaa (#3) and syllabication (#4). They were 00rd grade level reading goals (D 22, p. 2). They were not replaced or stepped up in the 01/25/2013 IEP (T 131-133; D 7, p. 10; D 9, p. 6; D 32, p. 3, 1415).
The 01/25/2013 IEP (D 7, p. 10) had 8 goals. Compared to the 11/20/2012 IEP ( D 8, p. 6-7), it repeated one goal (%%%%%%%% **(((((), stepped up one goal (aaaaaaaaa - compare # 5 in 11/20/2012 at 00 grade level to # 3 in 01/25/2013 at 0th grade level), stepped down 2 goals (math, paragraph composition - compare # 2 and # 7, respectively, in 11/20/2012 to # 5 and # 4, respectively, in 01/25/2013), and added 4 goals ()))))))))) reduction [#2], telling time [#6], making change [#7], rrrrrrrrrrrrrrrrrrrr [#8]) (T 1301).
The paragraph composition goal (aka hhhhhhhhh or **(((((aaaaa) was stepped down because X was struggling to write a complete sentence (T 1322-1325; T 383-384; D 32, p. 16). That paragraph composition goal had been included in many past IEPs (e.g., D 8, p. 7, D 9, p. 6; pls see herein p. 6, p. 9, p. 11, p. 14).
The 01/25/2013 math goal related to simple addition, subtraction, multiplication and division (D 32, p. 16 – which, as noted at the top of p. 15 herein, represented regression).
On 02/01/2013, Parents removed X from the District placement (T 112) and unilaterally placed X at Z (T 1032; P R). On 02/21/2013, the CSE sent Parents a new IEP, together with prior written notice of both the 01/25/2013 CSE’s recommendations and the Board of Education’s approval of those recommendations (D 49; D 50). The 01/25/2013 IEP was not implemented because X was attending Z (T 112; T 1293).
2013 HEARING AND 2014 APPEAL
By hearing request dated 03/29/2013, Parents challenged the program offered to X as a result of the 01/25/2013 CSE meeting and sought tuition reimbursement for the cost of the Z placement for the spring 2013 semester (D 2). By letter dated 04/12/2013, the District responded (D 4).
After a five-day hearing in 06/2013, and by decision dated 10/17/2013, the IHO determined that Parents were entitled to tuition reimbursement (D 65). By decision dated 01/15/2014, SRO 13 – 214 reversed the IHO’s decision (D 66). The SRO determined that X made progress at the District, and that X’s 01/25/2013 IEP addressed his educational needs (D 66, p. 16, 22). Parents appealed that SRO decision in Federal Court (D 67, p. 3).
The parties to this proceeding have stipulated that all evidence and testimony from the previous hearing will be included as part of the record of the instant proceeding (IHO Exhibit One; T 1246; T 1251). To date, no decision has been issued by the Federal Court, and the SRO’s decision remains as an unreviewed decision of a state administrative agency under the IDEA (D 67, p. 3).
01/2013 Z A+++++ISSION TESTS
On 01/11/2013, Z’s Director of ]]]]]]]]]]]]] & [[[[[[[[[[[[[[ (M) evaluated X in order to determine his eligibility for enrollment (P F; T 1009; T 1014). She (M) earned a PhD in psychology and a Masters Degree in Special Education, has published and taught, has been on staff at Z for about 15 years, and is an expert in the area of working with students with qqqqqqqqqqqqq and with !!!!!!!!!!!! (T 1009-1010; T 1033-1035; T 1059). She (M) administered the following tests with the following results: IssssA wwww – grade equivalent 00; Z Neeeeee – 00% correct; gggggggggggg Rev’d – grade equivalent 00; **(((((aaaaa 0th Ed. (**(((((AAAAA 5) – see below; **(((((aaaaa**(((((aaaaa (Written) – grade equivalent 000; Written Hheeeeee 0th Ed. – see below; and R$$$$$$$$$ S (&&&&&&&) – grade equivalents 00000 (P F; T 1015 - 1025). On the **(((((AAAAA 5, X’s raw scores and grade equivalents were: 00 and 00 respectively in rate, 00 and 00 respectively in accuracy, 00 and 00 respectively in rrrrrrrrrr, and 00 and 00 respectively in hhhhhhhhh. The sum of his scaled scores was 00, his percentile aaaaaaaaa rank was 00, and his aaaaaaaaa index was 00 (D 87, p. 1).21
21 On 05/14/2013, on the **(((((AAAAA 5, his raw scores and grade equivalents were: 20 and 2.4 respectively in rate, 15 and 1.7 respectively in accuracy, 35 and 2.0 respectively in rrrrrrrrrr, and 31 and 4.0 respectively in X’s aaaaaaaaa was “very slow, effortful, and error-prone” (P F, p. 2). On the **(((((aaaaa – 0th Ed., X scored at a 0.0 grade equivalency in yyyyyyyyyyy (i.e., mechanics, sentence structure, **(((((aaaaa) and below a 0.0 grade equivalency in yyyyyyyyyyyyyyyy(i.e., story elements) (P F, p. 2).
She (M) testified that: (1) X’s admission test results demonstrated that X (a) has the characteristics of aaaaaaaaaaaa, and is overall a good fit for Z (T 1023 – 1025; T 1086-1087; T 1096; T 1112), (b) has difficulties with waaaaaaaaaaaaaaa, and (c) needs ddddddddddddddddddd for rrrrrrrrrr in aaaaaaaaa (T 1018), and for hhhhhhhhh (T 1021); (2) a full scale IQ score rarely accurately assesses a student with learning disabilities because there are some subtests (i.e., working **(((((, ptttttttt) that are more indicative of learning disabilities and other subtests (i.e., 44444hhhhhhhhh, pyyyyyyyyyyyyy) that better indicate cognitive ability (T 1084 – 1085; P JJ); and (3) X scored ####### for his age in 333333l hhhhhhhhh (T 1085; P JJ).
The 02/2013 READING and 03/2013 MATH EVALUATIONS
After the 01/25/2013 CSE meeting, Parents decided to get a second opinion from an **(((((aaaaa &&&&&&& at their own expense (T 1172-1173).
On 02/06/2013, @@@@@ re-evaluated X (P E). @@@@@ is an **(((((aaaaa educational diagnostician who had evaluated X on 05/23/2012 (D44). The re-evaluation was done only 4 days after X started at Z and 17 days after the date of the District’s consultant’s (+++++) report (D 36).
@@@@@ reviewed the Z admission test scores and administered standardized tests (P E). @@@@@: (1) noted that X’s progress since his early elementary years (and including the 9 months between @@@@@’ two evaluations) had been minimal (T 714; P E, p. 1- 4) 22, (2)
hhhhhhhhh. The sum of his scaled scores was 00, his percentile aaaaaaaaa rank was 00, and his aaaaaaaaa index was 00 (D 87, p. 2; P Y, p. 2). On 05/02/2014, on the **(((((AAAAA 5, his raw scores and grade equivalents were: 00 and 00 respectively in rate, 00 and 00 respectively in accuracy00 and 00 respectively in rrrrrrrrrr, and 00 and 2.4 respectively in hhhhhhhhh. The sum of his scaled scores was 00, his percentile aaaaaaaaa rank was 0, and his aaaaaaaaa index was 00 (D 87, p. 3).
22 **(((((aaaaa: On the **(((((aaaaa **(((((aaaaa Test Rev’d (Form G NU) **(((((aaaaa Test: 05/2012 score was 4th percentile, SS 73, 2.6 grade eq; 02/2013 score was 00 percentile, SS 74, 2.9 grade eq. On the **(((((aaaaa **(((((aaaaa T III **(((((aaaaa Test: no administration 05/2012; 02/2013 score was 1st percentile, SS 66, 2.0 grade eq. On the hheeeeee hheeeeee 2 **(((((aaaaa Test: 05/2012 score was 2nd percentile, SS 04, 3.0 grade eq.; 02/2013 score was 1st percentile, SS 03, 2.7 grade eq. Phonics - Word Analysis: On the **(((((aaaaa **(((((aaaaa Test Rev’ (Form G NU) hheeeeee Test: 05/2012 score was 8th percentile, SS 79, 2.4 grade eq.; 02/2013 score was 15 percentile, SS 84, 2.9 grade eq. On the **(((((aaaaa **(((((aaaaa Test III hheeeeee Test: no administration 05/2012; the 2013 score was 1st percentile, SS 55, 2.5 grade eq. On the **(((((aaaaa hheeeeee (single & polysyllabic real and pseudowords): 05/2012 score was 1st - 2nd skill levels; 02/2013 score was 2nd - 3rd skill levels. There were six skill levels, and in 2013, ####### ageappropriate peer scores were at the sixth skill level. Reading Comprehension: On the **(((((aaaaa **(((((aaaaa Test Rev’d (Form G NU) hheeeeee Test: 05/2012 score was 11th percentile, SS 82, 3.4 grade eq.; 02/2013 score was 18th percentile, SS 86; 4.2 grade eq. On the **(((((aaaaa **(((((aaaaa Test III hheeeeee Test: no administration 05/2012; 02/2013 score was 8th percentile, SS 79, 4.0 grade eq. On the hheeeeee hheeeeee 2 hheeeeee Test: 05/2012 score was 3rd percentile, SS 02, 2.7 grade noted that X was functioning, generally, 00½ years behind his chronological grade level (T 684-685; T 717) , (3) noted that X had skill deficiencies in knowledge of the phonological code and the alphabetic **((((( at the uuuuuuuuu level of word learning (P E, p. 3) and (4) recommended that X participate in direct, **(((((aaaaa, **(((((aaaaa instruction for one or more instructional periods per day (P E, p. 4)
@@@@@ concluded that X’s enrollment at Z is appropriate based on: (1) the severity and complexity of X’s uuuuuuuu problems, rate of progress, and need for an educational environment that will accommodate his need for alternate instructional approaches and technology, (2) @@@@@’s own interaction with students who have attended Z, and (3) @@@@@’s own teaching and clinical experience of 40 years with students with !!!!!!!!!!!! (P E, p. 4).
On 03/09/2013, in order to understand X’s math skills and deficits, Parents obtained an **(((((aaaaa hheeeeee evaluation (IIIIIIIII) (P D) as a follow-up to the 01/2012 evaluation (D 45; T 1185). IIIIIIIII determined that in the 13 months between tests, X advanced 0.0grade in math calculation and 0.0 grade in math rrrrrrrrrr, and remained 0 years behind his chronological grade level (D 45, p. 2). X tested at 000 grade equivalency in calculation, 00 grade equivalency in math rrrrrrrrrr, 00 grade equivalency for broad math, 00 grade equivalency for applied problems (P D, p. 1-2).
Z (GENERAL PROGRAM)
Z is a non-profit private school that is accredited by the NY Chapter of the National Association of **(((((aaaaa Schools (T 534-535; T 1094; T 1109). Z has not been approved by the NYS Commissioner of Education as a school with which school districts may contract to provide special education services to students with disabilities (T 489).
Z is for students, grades seven – twelve, with !!!!!!!!!!!! or other hheeeeee-based learning disabilities (T 456). The Z program also addresses qqqqqqqqqqqqqqqq) (T 458). Z does not accept students who have behavior management needs (T 458).
Z’s total enrollment during the 2012 – 2013 academic year was 151 (although its usual enrollment is in the low 140’s) ( T 459). Z’s classes are scheduled six days per week, and most of its students and teachers reside on its grounds (T 459; T 1621; T 1627). The teachers share a lot of information with each other about the students, their education and their classes (T 1621). All teachers at Z (including math) use a **(((((aaaaa instructional approach (T 1622).
eq.; 02/2013 score was 3rd percentile, SS 04, 3.7 grade eq. **(((((aaaaa: On the Test of Written **(((((aaaaa 4: 05/2012 score was 2nd percentile, SS 68, 1.7 grade eq.; 02/2013 score was 5th percentile, SS 75, 2.4 grade eq. On the Kaufman Test of Educational Achievement (KTEA): 05/ 2012 score was 2nd percentile, SS 69, 2.6 grade eq; 02/ 2013 score was 1st percentile, SS 66, 2.6 grade eq. (P E, p. 2-4) Z is a college preparatory school in which the students are trained to (among other things) write, take notes and get information from notes (T 1715; T 1719; T 1743; T 1837). 100% of Z students graduate and go on to college (T 470; T 472).
Z uses the >>>>>>>>> Program (*****)23. ***** is a remedial program to help students develop: (1) hheeeeee skills, (2) **(((((aaaaa skills, (3) **(((((aaaaa, (4) rrrrrrrrrr and (5) hhhhhhhhh. ***** is hheeeeee-based, **(((((aaaaa, structured, **(((((aaaaa and cumulative. It involves aaaaaaaaa, drill, repetition and practice in application of what is taught. ***** concepts taught at the beginning in early grades are carried on continuously through all the grades. ***** is taught together with the Hheeeeee program, which helps students develop their hhhhhhhhh skills. X is enrolled in both ***** and Hheeeeee. Both are effective for students with !!!!!!!!!!!! (T 461 – 463; T 514; T 1512-1514; T 1593-1596).
All Z teachers are trained in *****, and they incorporate ***** into their instruction in all subject areas (T 513 – 514; T 1012; T 1082; T 1539; T 1593; T 1620-1622; T 1713-1715; T 1741-1743; T 1773-1774; T 1810-1811; T 1813). They attend conferences and “refresher courses” (T 460-461; T 463; T 1741-1742). Z teachers receive significant training and have extraordinary experience in teaching students with !!!!!!!!!!!! and other hheeeeee-based learning disabilities. The ####### tenure of Z teachers is 13 - 14 years (T 460).
Z’s ***** teacher - training program is certified as a teacher - training program by the International **(((((aaaaa Structured Hheeeeee Education Council, which is certified by the International Hheeeeee Association (T 461; T T 1540). Said training is at least two (2) weeks long (T 1539) and involves 60 contact hours on the ***** program (T 1810). All teachers in the training program “student teach” *****, create ***** lesson plans and observe ***** classes (T 1539).
***** is taught to all Z students (T 1513). Z places each student in an ***** and a math class based on his/her admission test results, academic needs and ability levels (T 466-467).
Classes typically have 3 – 7 students, and some classes have teaching assistants (T 464-465; T 1624-1625). Each student has a daily 45 minute teacher-supervised study hall (T 475-476), a daily 30-60 minute tutorial (i.e., an opportunity for one-on-one or small group instruction from one or more of his/her classroom teachers) and a daily opportunity for a 60 minute evening study hall staffed by one or more teachers (T 464; T 515; T 1785-1786; T 1925-1926).
X’s academic program includes a substantial level of highly-structured **(((((aaaaa hheeeeee instruction, and is specifically targeted to X’s special education needs with, among other things, small group and 1:1 instruction. X enjoys and wants to continue to attend school at Z (T 1178; T 1839).
!!!!!!!!!!!!, Coping and )))))))))): Z is addressing X’s )))))))))) issues by the very nature of its program, in which X feels comfortable and able to seek the academic help he needs (T 1640; T
23 As compared with qqqqqqq, which is elementary in nature (T 537-538), ***** is intended for adolescents and adults (T 1512). 1650; T 1943-1945), and in which he is finally making progress across all realms of his development (T 1075-1076; T 1549-51).[24]
Z students are taught executive functioning skills to help them to develop organization, time management and study skills (T 464; T 1596-1597). Z develops its students’ self-advocacy, coping and life skills (T 1731-1734; T 1903-1904). Z offers on-site formal !!!!!!!!!!!! and works with private *********s, but Z staff and X’s Mother have not seen a need for !!!!!!!!!!!! for X (T 621; T 1076; T 1582; T 1736; T 1944-1945)[25] .
X has gained self-esteem and confidence at Z (T 1902-1903; T 1926-1927; T 1945-1946). X has many friends at Z (T 607; T 1609-1610; T 1649-1651; T 1727; T 1783; T 1806; T 1838; T 1907-1908; T 1924).
X participated in, and was successful with athletics at Z (T 1725-1726; T 1924-1925). As a lacrosse player on the Z School team and in the general community summer 2014 lacrosse league, X had good ball-handling skills, was sometimes double-teamed by opposing teams, and was a good competitor (T 1725-1726). At that community summer league, which included nondisabled students from the District, X did well hheeeeeely and athletically, enjoyed playing, and was considered a valuable team member. He was not teased by his peers (T 1726-1727; T 19451946).
In addition, X went ice skating at a general community rink. As an 8th grader at Z, X made a presentation of his 4 - H project to the general community (not to a Z-only audience) (T 19261927). Ice skating at a community rink was an activity in which (like the community lacrosse league and 4-H presentation) he participated only because Z gave him the confidence to do so (T 1946).
X has gained the confidence to participate in the general community, which is something he could not do when he was a 6th and 7th grade student in the District (T 1726; T 1945-1946; D 74, p. 2). The CSE Chair agreed that the program and services X received at Z helped X to make hheeeeee / hheeeeee progress (T 1430-1431)
X’s teachers, and others who met or evaluated X at Z, state that X is a good fit at Z academically and hheeeeeely, and has no )))))))))) related to hheeeeee issues (T 478-479; T 607; T 1076; T 1086; T 1106; T 1111; T 1529; T 1549; T 1726; T 1749; T 1783; T 1806; T 1837-1839). X demonstrated some hheeeeee )))))))))) when he first came to Z (T 1639; T 1649), but he was quickly acclimated and making friends (T 1641-1642; T 1649-1651; T 1749-1750; T 1838).
***** / Writing / Hheeeeee: Z students receive hheeeeee instruction in English class, as well as in ***** class (T 519-20). At every grade level, the English curriculum includes: (1) hheeeeee hhhhhhhhh, (2) understanding parts of speech, (3) learning how to write basic sentence patterns, and (4) hheeeeee and hhhhhhhhh different types of literature, including poetry (T 520-521; T 1513; T 1811-1814). Students are taught syntactically correct sentence patterns (T 1812). The hheeeeee hhhhhhhhh program follows the **(((((aaaaa structured approach, and is incorporated in all areas of instruction (T 1514; T 1771-1772).
Individual Attention and Small Classes: Z class periods are each 45 minutes (T 521). Class sizes are small, usually with 3 - 7 students each (T 465; T 1624; T 1715; T 1744; T 1811; T 1814; T 1833). Z students have opportunities for 1:1 and small group (1 – 3 students) instruction during tutorials (i.e., each teacher holds office hours of 30-60 minutes at the end of each instructional day) and study halls (i.e., scheduled for 45 minutes during each instructional day) (T 1599-1600; T 1627; T 1721-1722; T 1751-1752; T 1754-1755; T 1818-1819; P X).
Z teachers daily provide 1:1 reinforcement of instruction and skills (T 1627; T 1639; T 16581659; T 1665-66).
These 1:1 opportunities have been especially beneficial to X because X responds well to scaffolding to gain a deeper understanding of concepts (i.e., modeling of homework / classwork expectations) (T 1723; T 1777-1779; T 1818-1819).
In addition, each student has an academic advisor who keeps a close eye on his/her academics and hheeeeee well-being (T 1075; T 1763-1764; T 1766-1767; T 1782).
Assistive Technology: At the District, X wasn’t trained in the use of and rarely used assistive technology. At Z, X used technology daily in class and while completing homework, and benefitted from it (T 1078-1079; T 1180; T 1532; T 1750-1751; T 1826-1827; T 1913; D 84, p. 5).
Z provides all of its students with appropriate assistive technology and with the training and support they need in order to effectively use it (T 477; T 1531). Z has a laptop program. All students are provided with a standardized laptop that has **(((((aaaaa (text to speech), **(((((aaaaa (speech to text), subject-based software (e.g., Science), graphic organizers and other software frequently used at Z (T 1531). All Z staff use laptops and **(((((aaaaa, too (T 477). In addition, all classrooms have smart boards (T 477; T 1531-1532), which help to make the learning environment interactive (T 1531), and facilitate the peer editing process (T 1533; T 1826-1827).
**(((((aaaaa, in particular, helps students to access content areas that have a lot of hheeeeee, such as literature, history and science, and also helps students in the hhhhhhhhh process by having the hhhhhhhhh read back to them for editing (T 1532-1533; T 1812-1813; T 1826). **(((((aaaaa helped X academically (T 1763).[26]
X acquired skills in the utilization of assistive technology (T 1750-1751; T 1761-1762; T 1775; T 1800). At Z, X learned to use **(((((aaaaa and Power Point, as well as other programs on a laptop (T 1762). X retained his computer skills over the 2013 summer, and then, as an 8th grader, built on the skills that he’d learned in 7th grade (T 1775; T 1786-1787; T 1800).
X benefitted from his access to, and ability to use assistive technology, because it has allowed him to, among other things: (1) have long passages in textbooks read to him, and (2) access **(((((aaaaa and definitions. Thus, his hhhhhhhhh has improved (T 1750-1751; T 1762; T 17861787; T 1826-1827).
7th Grade - SPRING SEMESTER 2013 AT Z
On 02/01/2013, X began at Z (D 1; T 521). He took the following 6 courses and earned the following final grades: Developmental Math B; 7th grade English C+; 7th grade General Science B-; 7th grade History B; Intro to Studio Art B+; ***** C+ (P FF, p. 8; P X).
Shortly after he began at Z, Parents were told that X’s math skills were significantly delayed. Unlike the other 7th graders, X was placed in a developmental math class in which he was the only student (T 596-597; T 1624; T 1635). X did not have the basic skills necessary for prealgebra (T 474). His 7th grade math teacher (O)[27] described his skills as ‘very weak’ (T 606; T 1629). X knew how to add and subtract, but he struggled with place value, multiplication and especially long division (T 601; T 1631; T 1634). X put a lot of effort (i.e., preparation and participation) into all of his classes, but he could have done even more by choosing to attend tutorials for extra help (P FF, p. 8 - 13).
X’s hheeeeee rrrrrrrrrr improved as demonstrated in improved aaaaaaaaa (P FF, p. 9). X performed better on science tests when iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii him hheeeeee the questions silently (P FF, p. 10-11). X showed improvements in organization, **(((((aaaaa and **(((((aaaaa usage (Id.), and in usage of the pottery wheel (P FF, p. 12).
At Z, X’s homework was more difficult and required llllllath skills than his homework had been at the District. X made academic progress in his ***** and math classes (T 529; T 606-607; T 12065-1206; T 1639; P N, p. 1; P O, p. 2, 4) and in some but not all of his standardized tests (see next 2 paragraphs).
Z retests its students in the spring of every year (T 1030; T 1118). X started at Z several weeks following his 01/2013 admissions testing. Thus, he was a student at Z for only 3 ½ months when he was retested in 05/2013 (P Y).
A comparison of his admission and 2013 retest results shows that he made some progress (P Y). X did not progress in **(((((aaaaa as measured by the **(((((aaaaa(T 1030). X progressed in hheeeeee rrrrrrrrrr and hhhhhhhhh, respectively, as measured by the **(((((AAAAA 5, from grade equivalents of 00 and 00 at admissions to grade equivalents of .0 and .0 at spring 2013 testing (D 87, p. 1-3; P Y, p. 2; please see p. 17 herein). In addition, X progressed in hheeeeee **(((((aaaaa as measured by the Z Hheeeeee Test (T 1026-1028).
X’s 7th grade ***** teacher at Z (KNR) explained that during her instruction, she focused primarily on hheeeeee, and secondarily on **(((((aaaaa (T 547). She (KNR) noted that in X’s spring 2013 assessments, his hheeeeee-based assessment score on the Z Hheeeeee Test increased, while his **(((((aaaaa assessment score on the **(((((aaaaa**(((((aaaaa test decreased (T 545-546; T 548-549; P Y).
2013 – 2014 (8th grade): On or about 08/28/2013, Parents informed the District that they rejected the CSE’s recommendations and intended to seek tuition reimbursement for X to attend Z for the 2013-2014 academic year (D 76). Thus, the District did not implement the 13/14 IEP (T 1349-1350).
X attended 8th grade at Z (P GG, p. 26-31; D 84). X took the following 6 courses and earned the following final grades: Computer 1 – B; Developmental Math – C+; Earth Science 8 – B-; English 8.2 – B; History 8 – C+; and >>>>>>>>> (*****) 84 – B-. In the fall semester only, X also took a health class (T 476). In the spring semester only, X also took Three Dimensional Art 1 and earned the grade of A-. (P GG, p. 26)
His 8th grade teachers all reported that, generally, X daily arrived at class on time with the proper materials, participated enthusiastically in class discussions, volunteered to complete problems at the smartboard, completed optional corrections to improve his homework scores, and learned the course material (P GG, p. 26-31). Generally, X performed better on assignments that required hhhhhhhhh and analysis, as contrasted with fact memorization (P GG, p. 28-29; D 84, p. 1-24).
In Developmental Math, X’s final grade was C+. He started with A, then fell to Bs and Cs, and on the second semester exam, X earned a D. X struggled to complete several of his homework assignments, attended tutorial often but not as often as he could, and didn’t commit basic computational facts to **((((( (P GG, p. 26).
For 8th grade, X’s math class had two other students (for a total of 3 including X (T 1624 - 1625).
The small group instruction in 8th grade math allowed X’s math instructor (O) to work with X “1:1 a lot” to help with his “individual needs.” (T 1623). During X’s 7th – 9th grade years, the math teacher (O) provided X with individual attention !!!!!!!!!!!! of class by meeting X at tutorial or study hall at least once or twice each week (T 1628).
X benefitted from the specialized math instruction, and the individual attention in all of his classes at Z (T 1639; T 1658-1659; T 1665-1666). This is evidenced by his progress in math of over three grade-equivalency levels - from mid 00 grade in 03/2013 on the **(((((aaaaa Johnson III (P D, p. 2) to mid 0th grade in 03/2014 on the Stanford Achievement (D 84, p. 29).
X’s 03/2014 scores on the Stanford Achievement’s hheeeeee subtests ranged from the 1st – 00 grade equivalency levels: (1) total hheeeeee – 00; (2) hheeeeee **(((((aaaaa – 00; (3) rrrrrrrrrrrrrrrrrrrr – 00 (4) hheeeeee – 00; (5) prehhhhhhhhh – 00; (6) composing – 00; (7) editing – ; and (8) partial battery – (D 84, p. 29).
Between the spring of 2013 and the spring of 2014, X’s score on the **(((((aaaaa**(((((aaaaa Test increased from a grade equivalent of 00 to 00 (D 84, p. 26; P HH, p. 1). Z’s Director of ]]]]]]]]]]]]] & [[[[[[[[[[[[[[ (M) described this as “greater than chance improvement.” (T 1525).
During that same time period, X’s score on the Z Hheeeeee Test was unchanged (P HH, p. 1), and X’s grade equivalency scores increased on some (but not all) parts of the **(((((AAAAA 5:
(1) hheeeeee rate from vvvvvv; (2) hheeeeee accuracy from vvvvvv and (3) hheeeeee rrrrrrrrrr from vvvvv (D 84, p. 25; D 87, p. 2-3). However, his **(((((AAAAA 5 rrrrrrrrrrrrrrrrrrrr score fell from v.0 grade equivalent vvvvv, and as a result, his overall index remained the same as it had been at 01/2013 and again at spring 2013 testing (D 87, p. 1-3; P Y, p. 2; pls see p. 18-19 herein).
Re the afore-mentioned **(((((AAAAA 5 accuracy measure: Whereas X made vvv **(((((aaaaa errors during admissions testing, he only made vv errors when tested in 03/2014. Z’s Director of ]]]]]]]]]]]]] & [[[[[[[[[[[[[[ (M) described this as “functionally quite significant.” (T 1523-1524).
There were 3 students including X in his 8th grade English class (T 1815). His classmates had academic needs similar to X’s needs (T 1815). All three were well-behaved, got along well with each other, and required little redirection (T 1816; T 1821; T 1824; T 1827-1838).
Based on aaaaaaaaa in class, X’s English (B)[28] teacher reported that X made progress in hheeeeee rrrrrrrrrr, and displayed more comfort and less hesitancy in hheeeeee vvvvvvv and in **(((((aaaaa vvvvvs (T 1828-1829; T 1832; D 84, p. 15, 23).
X came to English class on time, was ready to work, contributed thoughtfully to class discussions and peer evaluation, was above ####### in class preparation and class participation, and attended scheduled tutorials (D 84, p. 4, 7, 13, 15, 23; T 1818-1819; T 1828). Though X needs more practice, his hhhhhhhhh improved from ####### to above ####### based not only on his own English teacher’s evaluations but also on evaluations by an objective committee of Z English teachers (D 84, p. 13, 19: T 1825; T 1831-1832).
X’s history teacher (Y)[29] reported X’s diligence in class and X’s attendance at weekly tutorials (T 1752-1754). There were 3 students including X in his history class, and X adapted well to the 8th grade workload (D 84, p. 1, 5). During the year, X’s performance and grades improved (D 84, p. 7, 12, 15, 20), and he progressed in his: (1) use of **(((((aaaaa and ddddddddd software programs, (2) sentence and paragraph structure, (3) handhhhhhhhhh and (4) typing speed (T 1799-1800; P GG, p. 28).
2014 – 2015 (9th grade): On or about 08/19/2014, Parents informed the District that they rejected the CSE’s recommendations and intended to seek tuition reimbursement for X to attend
Z for the 2014-2015 year (D 82). Thus, the District did not implement the 14/15 IEP (T 1385; D 83).
X attended 9th grade at Z (P GG, p. 32-33). X took the following 6 courses: *****, Theater, Math, English, History, Physical Science.
X’s advisor (Y) reported that X attended evening study hall for 1:1 help from his science teacher, and as a result, improved his science grade (T 1805). For day students (like X), evening study hall is optional, and inconvenient (because it requires an after-dinner round trip from home to school) (T 1805; T 1807-1808). X’s advisor (Y) also reported that X worked harder in 9th grade than he did in 8th grade, and both Y and X were pleased with the results (T 1804).
X’s English teacher (B) opined that X was doing fairly well and, like in 8th grade, was a “B student”, even though the 9th grade curriculum is more challenging than the 8th grade curriculum (T 1832-1833). There were 4 students including X in his 9th grade English class, and they were not the same students as were in his 8th grade English class (T 1833). X’s classmates had academic needs similar to X’s needs, and they got along well with each other, and needed little redirection (T 1834; T 1837-1838). During the 2 years (i.e., 8 and 9th grades) that B taught him English, X made progress in hheeeeee rrrrrrrrrr (T 1835).
X’s 9th grade history teacher (K) knew X before becoming his teacher because he (K) was X’s lacrosse coach during X’s 8th grade year at Z and then during the 2014 summer in a community league (T 1715; T 1725; T 1728). There were 6 students including X in his history class (T
1716) and all had academic needs similar to X’s needs (T 1718; T 1724). The students were all well-behaved (T 1718-1719). During the year, X improved his homework preparation and his grades (T 1719), and demonstrated **(((((aaaaa and insightful thinking (T 1720).
In 9th grade, X received math instruction in a small group setting (1-3 students) 5 days/week (T 1624-1625). The needs of the other students in X’s 9th grade math class were similar to X’s needs (T 1633-1634). X increasingly utilized tutorial time for math (T 1627, 1645, 1693).
X advanced from working on developmental math skills in 7th grade to more age-appropriate pre-algebra in 9th grade (T 1664-1665). X was solving multi sub equations where he needed to know how to add, subtract, multiple and divide, and did “a phenomenal job.” (T 1665). The CSE agreed that X made tremendous progress in math at Z (T 1234; T 1355, T 1374-1375).
X’s math teacher (O) was trained in *****, had regular correspondence with X’s ***** teacher, and incorporated components of ***** in his math instruction (T 1620-1621; T 1653-1654; T 1683). X was again provided a **(((((aaaaa approach to learning math (T 595; T 604-605; T 1622).
X’s 9th grade ***** teacher (W) taught 4 ***** classes each school day, and each of her classes had 4 - 5 students (T 1596-1597). The needs of the other students in X’s ***** class were similar to X’s needs in terms of **(((((aaaaa and processing speed, and all had hheeeeee - ddddd dddddddg ffffffffes (T 1598; T 1604). The students in X’s ***** class all got along well together hheeeeeely, were comfortable with each other, and supported each other academically (T 1598-1599; T 1609-1610). None had behaviors that distracted the others (T 1599).
The ***** teacher (W) frequently provided X with individual attention !!!!!!!!!!!! of class by emailing him and by meeting him at tutorial about once each week (T 1600-1601; T 1613-1614). She noted that X has good cursive hhhhhhhhh skills, and was as comfortable using a word processing program as hhhhhhhhh longhand (T 1602). Based on aaaaaaaaa in class, X’s *****
(W) teacher reported that X made progress in hheeeeee rrrrrrrrrr, and displayed more comfort and less hesitancy with **(((((aaaaa words (T 1608-1609). X did well in her 9th grade ***** class30 (T 1605-1606; T 1609; T 1613). X still required a lot of instruction in both hheeeeee and **(((((aaaaa (T 1607), but had fffffffffffm hheeeeee (that form the basis of the ***** program), and made progress gggggggggg (T 1605; T 1613; T 1618). As evidence of progress, X earned a grade of 100% on a cumulative, end of semester **(((((aaaaa test (T 1607).
THE IEPs for 2013-2014 (13/14 IEP) (D 73) and 2014-2015 (14/15 IEP) (D 80)
In the 13/14 and 14/15 IEPs, the evaluations, performance levels and goals 31 were revised (T 1311 – 1328; T 1353-1384; P D – P F; D 74; D 79). However, the 13/14 (D 73) and 14/15 (D
80) IEPs provided the same programs, services and supports as previous IEPs (D 7 - D 9) (T 1329 – 1335).
For both years, the IEPs continued X in a 12:1:1 special education class 32 with the same access as in previous IEPs to general education (i.e., physical education, special area classes, lunch) (D 7, p. 11; D 73, p. 13; D 80, p. 13; T 1330-1333; T 1368-1369; T 1458-1461).
On 06/21/13 and again on 07/03/13, the CSE met to discuss the 13/14 IEP. The District’s school ********* (PPPPPPPPP) and the Z ***** School Director (JS)33 participated in both meetings; X’s Mother participated in the 2d meeting (T 1305; T 1309; D 71; D 73).
On 05/28/2014, the CSE met to discuss the 14/15 IEP. Present were: X’s Mother, and 3 Z staff members (***** School Director [JS], and two Teachers [B, JS]) (D 78; D 79, p. 3).
Comparing the 13/14 IEP (D 73) to the 14/15 IEP (D 80), there were 4 changes: (1) 1:1 math 3x/6 days 30 minutes was removed from “supplementary aids, modifications and accommodations” (D 73, p. 14 compared to D 80, p. 14; T 1936) ; (2) individual !!!!!!!!!!!! was decreased and changed from an !!!!!!!!!!!! to an in-school provider, and group hheeeeee skills instruction 1x /6 days 30 minutes was removed (D 73, p. 13, 16 compared to D 80, p. 13); (3) the classroom accommodation of calculator use when computation is not
30 and in 8th grade, did well in another teacher’s ***** class 31 Re repetition of goals, pls see herein: p. 6, p. 7, p. 9, p. 11, p. 13, p. 17. 32 The students in X’s 12:1:1 class remained on track for a Regents diploma and were taught the same curriculum as their non-disabled peers (T 1332-1333; T 1370). 33 X’s Mother testified that during the 2013 summer, Z’s ***** School Director (JS) taught math and ***** to X (T 1915). At the 06/2013 hearing, JS testified that he taught X only for one class on one day (T 474), and thus knew X only from interacting at study hall, the dining table, athletics, etc. all on the Z campus (T 473). being assessed was changed to calculator use even when computation is required (T 1366); and (4) most goals were continued, but other goals were modified to reflect X’s progress, especially in math.
For the 2013 summer, ESY services were provided but Parents declined them. The services were: (1) 1:1 instruction in reading (3x/wk 50 minutes) and in math (3x/wk 30 minutes), and (2) !!!!!!!!!!!! !!!!!!!!!!!! 2x/month 60 minutes (D 73, p. 14, 16; T 1345-1347; T 1916). For the 2014 summer, ESY services were provided but Parents declined them. The services were: 1:1 instruction in reading (3x/wk 50 minutes) and in math (3x/wk 30 minutes) (D 80, p. 15; T 1383-1384).
Social / Emotional Concerns: On 07/13/2013, X’s Mother expressed concern about hheeeeee / hheeeeee issues (T 1304-1307; D 73; D 74, p. 2, 4). In the summer before 8th grade (2013), X refused to attend a local soccer summer camp when he learned that some students from the District were participating (T 1945-1946; D 74, p. 2).
The 13/14 IEP inaccurately describes X’s fffffffffff, including: X “has only one friend, but because of an incident that occurred within the last ten days, ‘X now has no friends’” and X’s “perception of events is sometimes more negative in nature than what actually happened” and X “needs to improve hheeeeee skills.” (D 73, p. 10; T 1896-1899; T 1916 - 1917).
In 12/2011, X was transitioned from general education to a 12:1:1 classroom (T 354). For the entire 2012 calendar year, and until he transferred to Z on 02/01/2013, X was increasingly and repeatedly bullied, harassed, teased and /or hheeeeeely rejected by his non-disabled peers (T 1853-1854; pls see herein p. 8-9, p. 12-13).
During 2012, District staff were well-aware but failed to identify and address X’s individual needs related to bullying by his peers at the District (T 1855; T 1905-T 1907; T 1964-1968).
During his first semester at Z and continuously thereafter, X made many friends among the other students, and was happy and well-adjusted hheeeeeely (pls see p. 22 herein)
However, based on the inaccurate description of X’s ddddddddddd (pls see 4 paragraphs above; T 1906-1907), the 13/14 IEP provided that X receive: (1) during the 2013 summer, individual !!!!!!!!!!!! !!!!!!!!!!!! 2x/month 60 minutes and (2) 09/2013 - 06/2014, group in-school “hheeeeee skills instruction” 1/6 days 30 minutes, and individual ddddddd !!!!!!!!!!!! 1x/month 60 minutes (D 73, p. 13). The 01/25/2013 IEP had provided individual dddddd !!!!!!!!!!!! 2x/month 30 minutes (D 7, p. 11; T 1337-1341).
Outside !!!!!!!!!!!! was added in 13/14 because X “had difficulty ddddddg up to ********* and !!!!!!!!!!!! at school.” (D 74, p. 2; T 1381). The CSE continued a goal (that had been added in 01/25/2013 IEP in D 7, p. 10) to learn strategies to hheeeeee )))))))))) (D 73, p. 11-12).
On 05/28/2014, X’s Mother had fewer concerns about X’s hheeeeee / hheeeeee condition (T 1383; D 80, p. 9). The 14/15 IEP accurately states that X “is on the modified lacrosse team” , “interacts with peers … at Z…” , “has made friends” with students at Z and “interacts with them !!!!!!!!!!!! of school.” (D 80, p. 10). The CSE Chair admitted that the program and services X received at Z helped X to make hheeeeee / hheeeeee progress (T 1430-1431).
X’s Mother and the CSE agreed 34 that X would experience )))))))))) if he were to return to a 12:1:1 class in the District (D 80, p. 10). The CSE opined that X should develop skills to address the )))))))))) that he experienced in the public school setting (T 1930; T 1943-1944).
In the 14/15 IEP, the CSE recommended individual in-school !!!!!!!!!!!!, 1/6 days 30 minutes 09/2014 – 06/2015 (D 80, p. 13). The CSE removed summer !!!!!!!!!!!! and !!!!!!!!!!!! !!!!!!!!!!!! (both had been recommended in the 13/14 IEP) because: (1) X was in less of a crisis than the previous year, and (2) as a 9th grader, he’d be in the District’s High School and have the opportunity to work with a new !!!!!!!!!!!! (as contrasted with the familiar ***** School !!!!!!!!!!!!) (T 1378-1379). The strategy to hheeeeee )))))))))) was retained as a goal (D 80, p. 12).
The District did not include a plan in the 13/14 or 14/15 IEPs, or elsewhere, to investigate and/or respond to the bullying of X by his non-disabled peers (T 1906-1907).
Goals: The 13/14 IEP had 8 goals (D 73, p. 12). Compared to the 01/25/2013 IEP (D 7, p. 10), 4 goals were repeated ()))))))))) reduction, aaaaaaaaa at 5th grade level, sentence composition, %%%%%%%% **(((((), 1 goal was stepped up (paragraph composition goal returned in 13/14 as # 5, after having been deleted from 01/25/2013), 2 math goals (computation and concepts) were re-worded, and lastly, %%%%%%%% **((((( was addressed with 2 goals rather than 1 goal ( D 73, p. 12 compared to D 7, p. 10).
The paragraph composition goal in D 73, p. 12 (13/14 IEP) had been in past IEPs (i.e., those dated 11/20/2012 [D 8, p. 7] and 08/20/2012 [D 9, p. 6], 35 and as far back as 03/30/2009), but it was removed from the 01/25/2013 IEP (D 7, p. 10) because X still hadn’t met and likely couldn’t meet that goal (T 1321-1325).36 The paragraph composition goal in D 73, p. 12 (13/14 IEP) was added because, as per the CSE, X made progress in **(((((aaaaa at Z (T 1325).37
The math goals in the 13/14 IEP were newly-stated and related to 00 grade concepts (D 73, p. 12; T 1325-1326). Goals about telling time and counting change from the 01/25/2013 IEP (D 7, p.
10 #6, #7) were removed at Parent request but not because X had mastered them (T 1326). The 14/15 IEP had 7 goals (D 80, p. 12). Compared to the 13/14 IEP (D 73, p. 12), 5 goals were repeated (sentence composition, paragraph composition, %%%%%%%% **(((((, )))))))))) reduction and math concepts), 1 goal was stepped down (aaaaaaaaa from a 0th grade to a 00 grade level) and lastly, one goal was added (***** hheeeeee with hheeeeee) (D 80, p. 12; T 1360-1365). 34 As did Z’s Director of ]]]]]]]]]]]]] and [[[[[[[[[[[[[[s (M) 35 And in the 06/04/2012 IEP (D 10, p. 6) with slightly different wording 36 In 01/25/2013, X was struggling to identify a complete sentence (T 1324-1325). 37 Re repetition of goals, pls see herein p. 6, p. 7, p. 9, p. 11, p. 13, p. 17, p. 28. Related Services: In both the 13/14 and 14/15 IEPs, the CSE continued its past recommendation of uuuu individual 2/6 days 30 minutes to address **(((((-related needs (T 1335; D 73, p. 13; D 80, p. 13).
Supplementary Aids / Modifications / Accommodations: The CSE continued its past recommendation of supplementary aids and services, including assistive technology (i.e., a laptop for school, a second laptop for home, **(((((aaaaa software, **(((((aaaaa software, audio versions of textbooks), calculator for computation in the classroom (when computation is not assessed in the 13/14 IEP changed to where computation is assessed in the 14/15 IEP see T 1366-1367), no penalty for mis**(((((aaaaa, assignments read and a monthly consultation with X’s teachers to discuss strategies to address hheeeeee needs ( D 73, p. 13-16; D 80, p. 13-15).
Again, the CSE continued its past recommendation of test accommodations including extended time, location with minimal distractions, use of calculator (for tests requiring computation, when computation is not being assessed), tests read and repeat listening passage (D 73, p. 17; D 80, p. 15-16).
Reading: Although aware of Parents’ skepticism of the District’s claims of reading progress based on +++++’s report (D 36), the CSE did not try to reconcile the differences between +++++’s report and standardized tests from the same time period (i.e., Z tests dated 01/2013; @@@@@’s evaluation dated 02/2013; IIIIIIIII’s evaluation dated 01/2012)(T 1416-1419).
Concerning hheeeeee instruction, Z staff agreed with @@@@@ (05/2012) (D 44, p. 11) and #### (03/2011)(P G) that it would not be appropriate to continue instruction under a program (i.e., qqqqqqq) in which X had demonstrated very little progress over a number of years (T 573574; T 644). X’s first (i.e., 7th grade) ***** teacher at Z (KNR) opined that qqqqqqq is too elementary to be used at Z (T 357 – 358).
@@@@@ cautioned that the implementation of iiiiiiiiiiii and qqqqqqq in combination is not appropriate given X’s needs and learning style and that, at least for X, the two programs should not be combined (T 722; T 1911-1912). The CSE discussed neither @@@@@’ concerns about the combination of iiiiiiiiiiii and qqqqqqq (T 722; T 1405-1406) nor @@@@@’ programming recommendations (T 1407-1411; T 1889-1890).
Notably, even though the CSE had some concern regarding the expertise (or its lack) of the District staff to address X’s significant needs as a student with !!!!!!!!!!!! (pls see p. 10 herein), the CSE removed provision of an !!!!!!!!!!!! hheeeeee consultant. An !!!!!!!!!!!! hheeeeee consultant had been provided in the 13/14 IEP (D 73, p. 15) and in past IEPs (D 7, p. 13; D 8, p. 10; D 9; p. 9), but was not provided in the 14/15 IEP (T 1933-1934; D 80, p.15).
The 13/14 and 14/15 IEPs both recommended the combination of 1:1 qqqqqqq and iiiiiiiiiiii hheeeeee instruction (i.e., qqqqqqq 4x/6 days 50 minutes and iiiiiiiiiiii 2x/6 days 50 minutes) (T 1334-1335; D 73, p. 14; D 74, p. 2; D 80, p. 13-14).
Math: For 13/14, and 14/15, the CSE continued its past recommendation that X receive math instruction in the 12:1:1 setting (T 1335-1337; D 73, p. 13 – 14; D 80, p. 13, 17). Past IEPs did not include 1:1 math instruction 38. Nevertheless, the 13/14 (but not the 14/15) IEP provided 1:1 instruction in foundational math application and computation skills 3x /6 days 30 minutes (D 73, p. 14; D 80, p. 13-14). The CSE did not recommend any different teaching approaches in math, such as utilizing a **(((((aaaaa approach to instruction, or daily small group instruction (D 73; D 80). This was remarkable given that: (1) IEPs dating from 00, 6th and 7th grades (pls see herein p. 5, 6 & 14) noted the importance to X of 1:1 and small group support in math, and (2) the CSE should have attributed X’s success at Z to daily 1:1 and small group support, and **(((((aaaaa instruction.
X benefitted from the specialized math instruction and the individual attention that he received at
Z. This is clear from his progress of over three (3) grade levels - from a 3.4 G.E. in 03/2013 (P D, p. 2) to a 6.7 G.E. in 03/2014 (D 84, p. 29). At Z, X advanced from working on developmental math skills as a 7th grader to more age - appropriate instruction in pre-algebra as a 9th grader (T 1664). X’s math teacher confirmed that X does well converting fractions, decimals and percentages, and shows an understanding of probabilities (D 80, p. 9; P GG, p. 24).
The CSE Chair agreed that the spring 2014 tests showed that X made gains in hheeeeee at Z, but not at the same rapid rate as his gains in math (T 1234; T 1355-1356; T 1374-1375). As a result of X’s progress in math during 2013-2014, the CSE determined that X did not require 1:1 math support for 2014-2015 (T 1978-1979; T 1982).
Parents cooperated with the District relative to open communication with Z, and have readily provided and/or allowed the District access to records regarding X’s programming, supports, services and/or progress (D 69, p.2; P N; P O; P Y). The CSE did not request that X’s math teacher be present for CSE meetings (T 1492-1493; T 1666; T 1998-1999), and he wasn’t present (D 73, p. 1; D 80, p. 1).
X’s 2013-2014 records are replete with statements that X should more regularly attend tutorial39, particularly for math (D 84, p. 3, 10, 15, 21, 23). The CSE recognized the importance for X of drills and repetition (T 1375). Testimony confirmed the importance for X of tutorial and 1:1 attention: T 1623; T 1628; T 1639; T 1658-1659; T 1671-1673; T 1696; T 1796-1798; T 1938- 1940. The CSE did not inquire what tutorial was and /or the reason that it was repeatedly recommended (T 1434-1435). The CSE should have been aware of the math programming, supports and services X was receiving at Z.
X attended tutorial for math during the 2014-2015 year more than he had in the past (T 16921693; T 1696). If X did not regularly attend tutorial, then he struggled to make academic progress in math, and this is the reason that his math teacher repeatedly recommended that X attend tutorial (T 1671-1673).
The CSE made another change to math instruction in the 14/15 IEP: allowing use of a calculator for classroom assignments requiring computation (T 1372-1373; D 80, p. 14). This change was
38
Pls see p. 17, herein. 39
where X received 1:1 instruction at Z after scheduled classes (T 1627-1628; T 1752). initiated at the suggestion of Z staff (T 1364-1365; T 1377-1378; T 1435-1436; T 1492-1493; T 1688-1690; T 1695-1696; T 1978-1980; D 79, p. 1).
Z staff recommended that X use a calculator so that he could work on higher level problemsolving skills rather than trying to memorize math facts (D 79, p. 1; Tr. 1364-1368). The IEP’s calculator test accommodation remained unchanged (“for tests requiring computation when computation is not being assessed” (D 80, p. 16; T 1377-1378).
In the 14/15 IEP, the CSE justified its removal of X’s 1:1 instruction in foundational math because his skills had improved (T 1364-1365; T 1372-1373; T 1436-1437). His math teacher at Z did not agree with the elimination of 1:1 math instruction (T 1692-1693; T 1695-1697). It is clear that Z staff recommended only the change in classroom calculator use, and not the elimination of 1:1 math instruction.
CONCLUSIONS OF LAW
A school district may be required to reimburse the parent of a student with a disability for private-school tuition if: (1) the educational program that the district offered to the student was inappropriate; (2) the student’s private school program was appropriate; and (3) equitable considerations support reimbursement. Florence County SD v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dept of Ed, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 05-116; Application of a Child with a Disability, Appeal No. 05-020.
Re (1): In NYS, the District has the burden of proving that a FAPE was offered. NY Educ. Law § 4404(1)(c). Thus, the board of education must prove, by a preponderance of the evidence, that the recommended program (i.e. IEP) is appropriate, reasonably calculated to allow the child to receive meaningful educational benefit, likely to produce educational progress (not trivial advancement or regression), and in the least restrictive environment for the child (Bd of Ed Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]; RE v. NYC Dept of Ed, 694 F. 3d 167, 189-190 [2d Cir. 2012]; MH v. NYC Dept of Ed, 685 F. 3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling CSD, 427 F. 3d 186, 192 [2d Cir. 2005]; Walczak v. Florida UFSD, 142 F. 3d 119, 132 [2d Cir. 1998]; Mrs. B v. Milford Bd of Ed, 103 F.3d 1114, 1120 [2d Cir. 1997]; 200 USC Section 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116 [a][2]; 8 NYCRR 200.6 [a][1]). By definition, the IEP must be a written statement (20 U.S.C. §1414[d][1][A]) in effect at the beginning of each school year (20 U.S.C. §1414[d][2]). An IEP must accurately reflect the child’s present levels of performance and the results of evaluations to identify the child's needs, provide for the use of appropriate special education services and supplementary aids, describe testing modifications, and establish annual goals and short-term instructional objectives which address the child's educational deficits (Rowley, supra at 206-207; 34 CFR 300.320 [a][1, 2, 4]; 8 NYCRR 200.4 [d][2][i-v]). The appropriateness of the child’s proposed educational program cannot be ascertained by a parent until all this information is set forth in an IEP.
I find that the District failed to develop programs for both the 2013-2014 school year and the 2014-2015 school year that are reasonably calculated to provide X with meaningful educational benefit: (1) due to its failure to appropriately meet X’s needs in hheeeeee, math, **(((((aaaaa and assistive technology, (2) for placing X with students whose needs are dissimilar, and (3) for failing to meaningfully address ongoing instances of bullying and X’s related hheeeeee/hheeeeee needs.
Re (2): Because the District was unable to demonstrate that it offered X a FAPE, the burden shifted to Parents to prove that Z was appropriate to meet X’s needs. I find that they did so prove. Z’s program was reasonably designed to meet X’s individual needs, and X made significant progress at Z.
To meet his/her burden, a parent must prove, by a preponderance of the evidence, that the unilateral placement provides educational instruction specifically designed to meet the unique needs of his/her child (Gagliardo v. Arlington CSD, 489 F. 3d 105, 112 [2d Cir. 2007]). A parental placement need not meet state education standards or requirements. A parental placement need not provide the IDEA definition of FAPE, certified special education teachers, an IEP or mainstreaming opportunities. Florence County SD, supra; Frank G. & Dianne G., supra at 364-365. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefits, but courts assessing the propriety of a unilateral placement must consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.
Re (3): The equities favor reimbursement. The District did not dispute this issue (D 69, p. 2).
Preliminary Matter #1
Neither Collateral Estoppel nor Res Judicata Applies to the SRO Decision The District argued that Parents are collaterally estopped and/or res judicata precludes Parents from challenging whether X received meaningful educational benefit from the special education programming and/or services offered by the District prior to X’s placement at Z , and/or whether the District developed an IEP for X which was reasonably calculated to offer X a FAPE prior to X’s placement at Z.
The District relied on the SRO decision (D 66). Specifically, the SRO reversed the IHO’s decision and sustained the District’s appeal. The IHO had held that X had not received meaningful educational benefit from the special education programming and/or services offered by the District and that the IEP developed by the District prior to X’s placement at Z was not reasonably calculated to provide him a FAPE (D 65).
The District did not dispute that: (1) Parents have timely exercised their rights under 20 U.S.C. § 1415(i)(2)(A) to seek judicial review of the SRO’s decision, and (2) the reviewing Federal Court has not issued a ruling on Parents’ action (D 67, p.3). Rather, referencing the decision in DiSorbo v. Hoy, 343 F 3d 172 (2d Cir. 2003), the District argued that the pendency of Parents’ action before the Federal Court (WDNY) does not bar the application of collateral estoppel and/or res judicata. I agree with Parents that: (1) the District’s legal argument is without merit, and (2) the DiSorbo opinion (which relies on facts very different from those at issue) is irrelevant.
The District argued that: “Collateral estoppel, or issue preclusion, gives conclusive effect to an administrative agency’s quasi-judicial determination when two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal.” Jeffreys v Griffin, 1 NY 3d 34, 39 (2003). The District argued that both conditions were met here. I disagree. Although it was an interesting case for me to read, it is irrelevant. There is nothing in the Jeffreys case that persuades me that the District is correct on this question of law.
The District argued that “res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies” (Ryan v. New York Telephone Co., 62 NY 2d 494), and this includes administrative determinations. See Calhoun ex rel. Children’s Rights Initiative, Inc. v. Ilion CSD, 90 AD 3d 1686, 1688 (4th Dept 2011) (recognizing that administrative decision could have had preclusive effect if the issue in question had been necessarily decided in that administrative action). Again, although it was an interesting case for me to read, it is irrelevant. There is nothing in these cases that persuades me that the District is correct on this question of law.
The District argued that the SRO has determined that collateral estoppel applies in impartial due process hearings, and cited as authority Application of a Child with a Disability, Appeal No. 05072; and Application of a Child with a Disability, Appeal No. 04-099. The facts in those 2 SRO decisions are very different from the instant facts. Thus, those SRO decisions do not support the District’s argument.
During a post-hearing conference call, Parents argued that their position is supported by Central Hudson Gas & Elec. Corp. v Empresa Naviera Santa, S.A., 56 F3d 359 (2d Cir. 1995). The District argued, in response, that Central Hudson should not apply here. I agree with the District that Central Hudson is irrelevant.
I agree with Parents that neither res judicata nor collateral estoppel applies here because the SRO’s ruling is “not final” in that Parents have appealed the SRO’s ruling in Federal Court.
The Federal Courts which have examined the preclusive effect of a judicially unreviewed decision of a state administrative agency have consistently held that the IDEA’s statutory scheme abrogates common-law preclusion doctrines (such as collateral estoppel and/or res judicata) with respect to the judicially unreviewed findings of a state administrative agency, such that said decision and/or findings do not have any preclusive effect on the parent’s related and/or further claims under relevant federal law (i.e., the IDEA). See N.T. v. Espanola Pub. Schools, 2005 U.S. Dist. LEXIS 43667, * 18-22 (+++++C 05/20/2005); JSK v. Hendry County Sch. Bd., 941 F 2d 1563, 1567-69 (11th Cir. 1991); Hebert v. Manchester SD, 833 F.Supp. 80, 85 (DNH 1993); D.E. v. Cent. Dauphin SD., 2013 U.S. Dist. LEXIS 626, *22-25; C.M. v. Bd. of Ed, 128 F. Appx. 876, 880 (3d Cir. 2005); Derrick F. v. Red Lion Area SD, 586 F. Supp. 2d 282, 296 (MD Pa 2008).
Following the analysis applied in University of Tennessee v. Elliot, 478 U.S. 788, 795-96 (1986), and Astoria Fed’l Sav. & Loan Ass’n v. Solimino, 111 S. Ct. 2166, 2169-70 (1991), some federal statutory schemes abrogate the federal common-law rule of preclusion. Id. Unlike the judgment of state courts, which are entitled the same full faith and credit in every court within the U.S., state administrative decisions will not obtain preclusive force in relation to federal statutory rights unless preclusion would be consistent with Congress’ intent. See Elliot, 478 U.S. at 796,
799. In short, “there is no free rein to impose rules of preclusion, as a matter of policy, when the interpretation of a statute is at hand”. JSK, 941 F.2d at 1568, citing Solimino, 111 S. Ct. at 2169.
When the statutory scheme in question requires litigants to exhaust their administrative remedies before proceeding to federal court and sets forth a specific standard by which the state administrative proceedings are to be reviewed by federal authorities, the Supreme Court has concluded that allowing common-law preclusion doctrines to apply to the results of such administrative proceedings “would make little sense.” N.T., 2005 U.S. Dist. LEXIS 43667, * 1822, citing Elliot, 478 U.S. at 795. Application of preclusion doctrines would produce an absurd result because, if the administrative findings were entitled to preclusive effect, then there would nothing left for a court to review. Id.
It would have made little sense for Congress to include provisions in the IDEA setting forth a specific standard of judicial review if the results of administrative proceedings conducted under this statute were considered final and afforded preclusive effect before any judicial review had occurred. Id. Federal courts have also reasoned that the statutory scheme of the IDEA would be undermined if state administrative decisions had preclusive effect. JSK, 941 F 2d at 1569.
Like the employment discrimination statutes at issue in Elliot and Solimino, the IDEA requires litigants to exhaust administrative remedies. N.T., 2005 U.S. Dist. LEXIS 43667, * 18-22, citing 20 U.S.C. § 1415(i)(2)(A), 1415(l); JSK, 941 F 2d at 1568-1569. The IDEA also prescribes a specific standard of review that federal courts are to apply to the findings of state administrative tribunals. N.T., 2005 U.S. Dist. LEXIS 43667, * 18-22, citing 20 U.S.C. § 1415(i)(2); JSK, 941 F 2d at 1568-69. In light of these features of the statute, federal courts have declined to give preclusive effect to judicially unreviewed findings of state administrative tribunals in IDEA actions. N.T., 2005 U.S. Dist. LEXIS 43667, * 18-22; JSK, 941 F 2d 1563, 1567-69; Drinker v. Colonial SD, 888 F.Supp. 674, 680 (ED Pa. 1995), aff’d on other grounds, 78 F 3d 859 (3rd Cir. 1996); I.D. ex rel E.D. v. Westmoreland SD, 788 F. Supp. 634, 641 (DNH 1992). Based on all of the above, the SRO’s decision does not have preclusive effect in this proceeding.
Preliminary Matter #2
Res Judicata does not Prevent Parents from alleging Deprivation of FAPE based on
Bullying and/or Harassment
The District argued that Parents are precluded from challenging the 13/14 and 14/15 IEPs for failure to address bullying because Parents failed to assert those claims in their 2013 complaint. The District’s argument is without merit and contradictory to the procedural safeguards assigned under 20 U.S.C. § 1415.
IDEA provides that, “Nothing in this section shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.”
20 U.S.C. § 1415(o). This provision was added to the IDEA during its most recent reauthorization in 2004. Public Law 108-446. Under IDEA 2004, the failure of a party to raise a particular due process claim in a hearing does not waive that party’s right to raise it in a future hearing. Because of the relative new-ness of this provision, there is little guidance from courts regarding its meaning and/or application. See M.M. v. Lafayette SD, 681 F.3d 1082, 1090 (9th Cir. 2012)(holding that, “§ 1415(o) authorizes separate due process administrative complaints on separate issues, not multiple federal district court complaints stemming from a single due process complaint.”).
Given the statutory directive, the common law rule of preclusion is abrogated. See Elliot, 478 U.S. at 795-96; Solimino, 111 S. Ct. at 2169-70.
Further, res judicata and/or collateral estoppel do not apply in this matter, as there is no identity of issue between the claims that were and/or could have been asserted in the Parents’ due process complaint filed on 03/29/2013 (D 2) and the Parents’ due process complaint herein (D 67).
The principles of res judicata require that, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” See SRO Dec. No. 08-026, citing Chen v. Fischer, 6 NY 3d 94, 100 (2005).
Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same plaintiff or someone in privity with the plaintiff; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. See SRO Dec. No. 08-026, citing Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450 at *6 (NDNY 12/19/2006).
The related doctrine of collateral estoppel precludes parties from litigating “a legal or factual issue already decided in an earlier proceeding.” SRO Dec. No. 08-026, citing Perez v. Danbury Hospital, 347 F 3d 419, 426 (2d Cir. 2003), and Grenon, 2006 WL 3751450 at *6.
To prove collateral estoppel, a party must show that: (1) the identical issue was raised in a previous proceeding; (2) the issue was ‘actually litigated and decided’ in the previous proceeding; (3) the party had a ‘full and fair opportunity’ to litigate the issue; and (4) the resolution of the issue was necessary to support a valid final judgment on the merits.’ SRO Dec. No. 08-026, citing Grenon, 2006 WL 3751450 at *6.
Parents here challenged the 13/14 and 14/15 IEPs. Parents alleged that, among other allegations:
(1) the 13/14 and 14/15 IEPs fail to appropriately identify and address X’s individual needs related to bullying he sustained from his non-disabled peers while attending the District, and therefore said IEPs were not reasonably calculated to offer X a FAPE, and (2) X was the subject of harassment, bullying, and hheeeeee isolation by his non-disabled peers while attending the District’s 12:1:1 program, but the 13/14 and 14/15 IEPs fail to address how such instances of harassment and bullying, and X’s needs related thereto, will be meaningfully addressed if X were to return to the District. (D 67, p. 2, 9).
The aforementioned claims relative to the 13/14 and 14/15 IEPs were not, nor could said claims have been, asserted in the Parents’ previous due process complaint (D 2). The 13/14 and 14/15 IEPs - which included inaccurate PLEP statements relating to X’s interactions with his peers and his “perception” of said interactions, as well as inappropriate services purportedly addressed to X’s needs related to his interaction with his peers - were created well after the conclusion of the due process proceeding held relative to Parents’ 2013 due process complaint. Parents did not, and could not have, challenged the appropriateness of said IEPs as the same did not exist at the time of the due process proceeding related to their 2013 complaint.
It is true that the bullying, harassment, teasing and/or rejection of X by his non-disabled peers occurred while he was attending the District prior to his placement at Z. However, this did not take away X’s individual needs related to said interactions with his peers which the District was legally required to accurately and appropriately identify and address. See T.K. v. NYC Dep’t of Educ., 779 F. Supp. 2d 289, 316-317 (EDNY 2011). Note that the District identified said needs in X’s IEPs (although inaccurately), and recommended services related thereto (although inappropriate). (D 73, p. 10, 13, 16; D 80, p. 10, 13; T 1431).
If the District were to prevail on its defense of claim and/or issue preclusion, then Parents’ rights under the IDEA, as set out in the IDEA’s procedural safeguards pursuant to 20 U.S.C. § 1415, would be obliterated. This would allow the District’s actions and/or recommendations related to the provision of a FAPE to X to go unreviewed based simply on the fact that certain relevant facts or circumstances cross-over between Parents’ previous due process complaint and a future due process complaint. Hypothetically, this would mean that if Parents had challenged in a due process proceeding the District’s change of placement for X in the 4th grade from a selfcontained special education environment to a general education environment (D 19, p. 1; P M), while being aware of certain facts and circumstances related to the X’s minimal level of progress in hheeeeee (P H), but not raising a claim about the appropriateness of the hheeeeee services being provided to X, then Parents would forever be barred from raising a claim about the appropriateness of said hheeeeee services for the remainder of his academic career at the District. This result is absurd, and certainly not what is contemplated by the procedural safeguards set out in the IDEA.
Every school year is a new year. Each school year, the District is required to review and develop a new program for students with disabilities residing in the District. See 20 U.S.C. § 1414(d)(4)(A). If a parent is dissatisfied with said program, then that parent is legally entitled to challenge the appropriateness of the District’s offered program (and/or the process by which it was developed) first in an administrative due process proceeding, and later in a judicial action (if necessary). See 20 U.S.C. § 1415(b)(6). This is what happened here. The District failed to appropriately identify and program for X’s individual needs related to the bullying of X by his peers at the District, and therefore the 13/14 and 14/15 IEPs were not reasonably calculated to offer X a FAPE.
Prong One
An appropriate educational program should address the student’s individual needs. To accomplish this goal, the U.S Supreme Court has advised that a school district should craft an educational plan and services that “consist of educational instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.” Bd of Ed of the Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188-89 (1982). The Supreme Court further explained that the substance of the services offered to the student must be “reasonably calculated to enable the child to receive educational benefits.” Id. at 206-207.
In 1998, in Walzcak v. Florida UFCSD, 142 F.3d 119 (2d Cir. 1998), the 2d Circuit Court of Appeals articulated the following standard for determining whether a district’s program meets the appropriateness standard under the IDEA:
The Supreme Court…has specifically rejected the contention that the “appropriate education” …requires states to “maximize the potential of handicapped children.” The purpose of the Act was “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Plainly, however, the door of public education must be opened … in a meaningful way. This is not done if an IEP affords the opportunity for trivial advancement. An appropriate public education is one that is likely to produce progress, not regression. (Citations omitted) Id. at 130.
This principle was affirmed in Weixel v. Bd of Ed, 287 F.3d 138 (2d Cir. 2002), when the Court stated that the determination of appropriateness should be based on whether an “IEP [is] reasonably calculated to enable the child to receive educational benefits,” or in other words, “[the IEP] must be likely to produce progress not regression.” Id. at 151. Then, in 2010, the 2d Circuit repeated that the IEP must afford an opportunity greater than mere trivial advancement. A.H. v. Dep’t of Ed of the City of NY, Nos. 09-3850-CV(L), 09-3920-CV(XAP), 2010 WL 3242234 (2d Cir. 08/16/2010).
When assessing progress, the SRO routinely considers the student’s level of progress towards achieving his annual IEP goals. See, e.g., Application of a Child with a Disability, Appeal No. 04-003; Application of the Bd of Ed of the North Salem CSD, Appeal No. 00-042.
A student’s progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the child’s rate of progress (see HC v. Katonah-Lewisboro UFSD, 528 Fed. App’x 64, 66-67; 2013 WL 3155869 at *2 [2d Cir. 06/24/13]; Adrianne D. v. Lakeland CSD, 686 F. Supp. 2d 361, 368 [SDNY 2010]; Carlisle Area SD v. Scott P., 62 F.3d 520, 530, 534 [3d Cir. 1995]).
Here, it is helpful to inquire whether, while X was a student at the District, the District appropriately addressed X’s hheeeeee, **(((((aaaaa and math delays, and hheeeeee / hheeeeee and assistive technology needs. I find that while X was a student at the District, the District did not appropriately address his aforementioned delays and needs. I find further that the IEPs at issue did not offer FAPE to X. Thus, Parents have met the first of the three Burlington / Carter criteria for tuition reimbursement. X was diagnosed with aaaaaaaaaaaa. X struggles with phonological processing and achieving a rapid rate of hheeeeee. His 2007 %%%%%%%% evaluation determined that his full-scale IQ
(FSIQ) score was 84, and his verbal hhhhhhhhh score was 100. His 2009 %%%%%%%% evaluation determined that his FSIQ score was 79, his verbal hhhhhhhhh score was 96, and his executive functioning was within normal limits. His working **((((( abilities were characterized as “deficient” (2007) and “borderline” (2009). His 01/2012 evaluation determined that his overall intellectual ability, long term retrieval, short term **((((( and phonemic awareness abilities were in the low ####### range, and his thinking ability and %%%%%%%% processing were in the ####### range. His 05/2012 evaluation determined that his nonverbal thinking and reasoning abilities were ####### for his age.
The District argued that X made slow and limited progress over the years in the District’s program because of his low ####### FSIQ, and / or because of his aaaaaaaaaaaa. This argument is unsupported. IIIIIIIII (an **(((((aaaaa &&&&&&& / licensed *********) disputed the validity of the District’s argument (T 832). IIIIIIIII - who was the first &&&&&&& to diagnose X with !!!!!!!!!!!! (D 45, p.11) - opined that X has the intellectual capacity to learn and acquire new information (T 832). M (Z’s Director of ]]]]]]]]]]]]] & [[[[[[[[[[[[[[) opined that a student’s verbal hhhhhhhhh score (rather than FSIQ) is the significant indicator of a student’s cognitive ability, and on said measure X’s score is age - appropriate. X’s ***** teacher (KNR) agreed that FSIQ scores are often suppressed for students with disabilities and therefore are not a good predictor of academic success.
In addition, while focusing on X’s performance in the 50th percentile on the Kaufman Brief Intelligence Test – 2 (**IT-2) in 05/2012 (D 44, p. 10), @@@@@ (an **(((((aaaaa &&&&&&&) opined that X can reason analogously and is of ####### intellect (T 669-670). IIIIIIIII opined that X’s limited progress was related to the District’s failure to “try a new approach” rather than to X’s disabilities (T 910).
Similarly, M (Z’s Director of ]]]]]]]]]]]]] & [[[[[[[[[[[[[[) opined that, despite X’s diagnosis with aaaaaaaaaaaa, she expected that X could make more than mere minimal progress if his program was “sufficiently intense and **(((((aaaaa and follows what research shows…” (T 1535-1538). M opined that a student with aaaaaaaaaaaa, such as X, needs a more comprehensive program in the sense that he is receiving the intervention daily and from all of his teachers and in all of his content areas as compared to a program (such as the District’s) that simply offers daily hheeeeee instruction (T 1537-1539).
Based on X’s disabilities, it would be irrational to expect him to make academic progress at the rate of his non-disabled peers. Nevertheless, it is clear that X did not make meaningful progress in hheeeeee, in **(((((aaaaa, in math, in use of technology or in hheeeeee hheeeeee concerns at the District, as evidenced by, among other things, standardized test results, descriptions of academic needs and performance in the IEPs, and the repetition of goals 40 from one IEP to the next. The IEPs at issue were substantially similar to the IEPs in 2012 and 01/25/2013. I find that X did not make progress under the 2012 IEPs and would not have made progress under the IEPs at issue. In short, in order to be successful, X required 40
Re repetition of goals, pls see herein: p. 6, p. 7, p. 9, p.11, p. 13, p. 17, p. 28, p. 30. intensive support and **(((((aaaaa instruction in all content areas, but the IEPs at issue did not provide it.
The District failed to consider information from Z which evidenced X’s ability to make substantial academic and hheeeeee / hheeeeee growth when provided the appropriate placement, programming and/or services. The record does not support the District’s excuse for X’s lack of progress at the District. Nein v. Greater Clark County Sch. Corp., 95 F. Supp. 2d 961, 972 (SD Ind. 2000) (the court dismissed the school district’s argument that the student’s 1/2 year of progress in a full year’s time was evidence that he made more than trivial educational progress, particularly where that student was not demonstrating application of the skill !!!!!!!!!!!! of the hheeeeee program; at 976 - dyslexic student denied FAPE where he made mere trivial academic advancement despite the school district’s conjecture that his !!!!!!!!!!!! limited his ability to learn).
I. X did not make Progress at the District
When assessing whether X would have made progress at the District during the 2013-2014 and 2014-2015 years under the IEPs at issue, the District convincingly argued that we should start by considering whether X made progress, or regressed, while attending school at the District. I find that X did not make progress.
A. I reject the District’s argument that from 09/2012 through 01/2013, X displayed multiple forms of progress.
The District’s argument is based on: (1) the subjective grades given to X in his highly modified curriculum, (2) X’s achievement of 4 of the 7 goals in his 08/20/2012 IEP, and (3) X’s completion of hheeeeee levels as measured by data collected under unknown circumstances, and interpreted by the District’s consultant (+++++).
Subjective Grades: The District argued that X’s grades in the District are evidence of progress. However, X’s special education teacher (**) testified that X’s grades reflected X’s performance in his highly modified curriculum. Good grades in a modified curriculum do not represent educational progress. Nein, 95 F. Supp. 2d. at 977.
X’s Mother testified that at the District, X was working on “pretty simple tasks…nothing challenging for him…he is challenged at Z now. I see the difference. Before he wasn't challenged. It was simple math facts. It was - the hheeeeee material was simple.” (T 1844). Further, X’s 2012-2013 classwork (P EE) evidenced the modified nature of X’s curriculum and is inconsistent with the suggestion that X was working on 7th grade curriculum.
In addition, progress was not evident in the “academic levels and present needs” description in the 11/20/2012 IEP (and to a lesser extent the 01/25/2013 IEP) (pls see p. 13-14 herein). Thus, the District’s own records do not support a finding of progress based on X’s grades.
Goals: The 08/20/2012 goals were rewritten from the goals that had been repeated and carried over in previous IEPs. X had achieved few if any goals in the 06/04/2012 IEP and in previous IEPs; instead, those goals were abandoned and stepped down. I find that X’s achievement of 4 of the 7 goals on his 08/20/2012 IEP did not represent progress.
Reading goals - The 01/25/2013 CSE determined that X achieved 4 goals. They all related to hheeeeee at the 00 grade level (**(((((aaaaa, **(((((aaaaa, syllabication and aaaaaaaaa). Considering that the academic needs and present levels in the 08/20/2012 and 11/20/2012 IEPs both reported X hheeeeee at the 00 grade level, that amount of progress (one full year) in that amount of time (two months) is suspect.
Writing goal - X did not achieve 3 of the 7 goals in his 08/20/2012 IEP. One of those goals (paragraph composition) was so far from mastery that the 01/25/2013 CSE abandoned it rather than carrying it over. That goal was in the 03/30/2009 IEP and had been repeated in every IEP until 01/25/2013, when, in the words of the CSE Chair, X couldn’t identify a sentence. Notably, that goal was added to the 13/14 IEP after X spent one semester at Z, and it was then repeated in the 14/15 IEP. Apparently, the CSE recognized that X made some progress toward sentence and paragraph composition while he was at Z.
Math goal – The 2d goal on his 08/20/2012 IEP that X did not achieve was math. The District admittedly did not implement it. The goal required one-step single digit by single digit addition, subtraction, multiplication and division. In 2012, X had regressed in his math skills as compared to his skills in 2011.
As a 4th grader, X was working on 3 digit addition and subtraction with re-grouping, carrying and borrowing. As a 5th grader, X’s math level was at 4th-5th grade, and X was: (1) making progress in multiplying multi-digit numbers by single-digit and multi-digit numbers, and (2) completing assignments that included addition, subtraction, and multiplication involving regrouping and double digit multiplication , and (3) “converting between fractions, decimals and percents based on tenths and hundredths”.
Then, the 11/23/2011, 06/04/2012 and 08/20/2012 IEPs all reported that X was well below grade level with basic computational skills and was working on mastering multiplication facts, but knew only his 2s and 3s. On the 5th and 6th grade NYS math assessments, X scored a Level 1 (the lowest possible score).
Thus, the 2010 IEP and the 2011 IEPs up to and including 10/11/2011 reported X working on more advanced math skills than did the 11/23/2011 IEP and the 2012 IEPs.
uuuu goal: The 3d goal on his 08/20/2012 IEP that X did not achieve was: improve %%%%%%%% **((((( as demonstrated by repeating 4/5 sequences of numbers or words or sentences of 5 or over 2 consecutive trials. It was to be implemented during uuuu (D 32, p. 15) and was carried over to his 01/25/2013 IEP and his 13/14 IEP.
Reading Levels Measured by Data: The District relied on a few months of data gathered by a progress monitoring system (AIMSweb) , and its consultant’s (+++++) report to support its claim that X made hheeeeee progress at the District. The AIMSweb data was unexplained, and +++++’s report is unreliable. There was no evidence about how the data was gathered, the environment in which it was gathered, and/or the qualifications and training of the individuals who gathered it.
Even though the District attempted to use the data to show an element of progress, the District ignored other AIMSweb data showing that: (1) X did not progress (i.e., the numbers were trending downward), and (2) X’s rate of progress dropped precipitously during the 2012-2013 school year (P J; P ZZ). The District admittedly did not marry the difference between X’s scores on standardized assessments and his purported performance on AIMSweb (pls see p. 31 herein and pls see below).
Further, a review of +++++’s report (D 36) compared to all the available AIMSweb data (P Z) demonstrated that the numbers reflected in that report do not match those found in X’s progress monitoring data. There is no evidence which explains the discrepancies.
I agree with Parents that the District’s AIMSweb data is unreliable, and therefore it does not support the District’s argument that X made progress at the District.
B. Standardized Tests demonstrated that X did not make progress in Reading while at the District
Although the District points to X completing nine levels of qqqqqqq from 07/2012 until 01/2013 as progress (D 37, p.1), in reality X made trivial gains at best, especially considering that the !!!!!!!!!!!! hheeeeee consultant (+++++) retraced the steps of prior instruction given to X and retaught skills he should have mastered (P P, p.1; D 37, p.1).
@@@@@ is an educational diagnostician who evaluated X in 05/2012 at District expense, and again in 02/2013 at Parents’ expense. In 05/2012, @@@@@ administered standardized tests and reviewed previous evaluations and District records. In 02/2013, @@@@@ administered standard tests and reviewed the 01/2013 Z test scores, but he did not review District records.
@@@@@ wrote 2 detailed reports, and concluded that X’s academic progress since his early elementary years, and including the 9 months between the 05/2012 and the 02/2013 evaluations, was minimal. @@@@@ expressed grave concern regarding X’s lack of progress after having received specialized hheeeeee instruction from the District (T 706). @@@@@ concluded that X’s nonverbal thinking and reasoning were ####### for his age, but that, even though he was a 7th grader, he was hheeeeee at the 00 – 00 grade level.
Another **(((((aaaaa &&&&&&& (####) concluded that X was functioning at the 00-00 grade level in 11/2009 when he was a 4th grader (P H). Thus, X added very little (if anything) to his skills between 11/2009 and 02/2013, and his deficits remained in the severe category (T 684685). @@@@@’ 02/2013 results were consistent with: (1) the District’s in-house 03/2011 standardized testing41, which showed X at, generally, a 00 – 00 grade hheeeeee level; (2) IIIIIIIII’s 01/2012 standardized testing, which showed X at, generally, 00-00 grade hheeeeee and math levels; (3) the 01/2013 Z scores, which showed X at, generally, a 00 grade hheeeeee level; and (3) the District’s 11/20/2012 IEP, which noted that X was at, generally, a 00 grade hheeeeee level.
The outlier is the 01/25/2013 IEP which claimed that X was hheeeeee at a 0th grade level. I reject the District’s argument that standardized tests are less reliable in measuring progress than are subjective grades on District report cards.
Z 01/2013 testing also showed that X read at the 00 – 00 grade level (P F, p. 1-2). M (Z’s Director of ]]]]]]]]]]]]] & [[[[[[[[[[[[[[) described X’s 0 as “quite slow” and “inaccurate” (T 1017; T 1520; P F). His hheeeeee rate was in the 5th percentile, his rrrrrrrrrr was in the 00 percentile and his accuracy was described as “quite weak” and was measured to be at the 1st grade level and in the 00 percentile (P F, p. 2; T 1017; T 1520). X made 93 **(((((aaaaa errors across the test passage, which is a lot (T 1520). X’s first ***** teacher at Z (KNR) opined that X’s performance on the 01/2013 Z tests accurately reflected X’s performance (T 546). KNR had the perspective of a teacher who was working with X daily (T 521; T 523; P X), and she opined that X was hheeeeee at a 1st-00 grade level when he entered Z (T 529).
The District has suggested that certain progress monitoring data, which it points to almost exclusively as evidence of X’s hheeeeee progress, is a more reliable measure to evaluate educational progress over time than are standardized tests (T 1172-1173; T 1484-1486). This suggestion is without merit. Standardized test scores reliably measure a student’s progress over time, and schools (including the District) use them for that purpose (T 215; T 250; T 737; T 1115-1116). Standardized tests provide accurate information and a set of benchmarks of a student’s performance (T 840 - 842).
To suggest that X’s performance on standardized tests are not a true reflection of his educational performance and progress, and that he just happened to have a bad day on each of the relevant tests, is unsupported in the record. @@@@@ (an **(((((aaaaa &&&&&&&) testified that during testing in 02/ 2013, X appeared to be very relaxed and, as a result, @@@@@ had no concerns about X’s ability to perform. X did not withdraw on any of the testing measures and performed each test without reservation (T 724-725). Even on 4th grade material, which X was not able to successfully read, X pushed through and made every effort to decode and pronounce each word he was given (T 725). Further, @@@@@’s results were commensurate with Z’s 01/2013 testing (P F) and X’s 11/20/2012 IEP (D 8, p.3).
The suggestion that standardized testing scores should be disregarded and that only the progress monitoring techniques utilized by the District should be considered, is unsupported by law. By the very nature of **(((((aaaaa evaluations, it would be impossible to monitor a student’s progress using techniques similar to the District and as often as the District is able to do so while
41 The District’s school ********* (PPPPPPPPP) administered **(((((aaaaa- Johnson tests, as did IIIIIIIII, @@@@@ and others. a student is in school. The scenario that the District would like to establish is entirely inconsistent with 8 NYCRR § 200.5(g)(vi), which requires **(((((aaaaa evaluations obtained by parents to be considered by the CSE, as well as 8 NYCRR § 200.4 (b)(6)(v), which dictates that no single measure or assessment may be used as the sole criterion for determining an appropriate educational program for a student. The District’s admission that it discounts and/or devalues the results of standardized assessments, and “considers progress monitoring more reliable” (T 1484-1486), highlights the District’s violations of 8 NYCRR § 200.5(g)(vi) and 8 NYCRR § 200.4 (b)(6)(v).42
C. Standardized Tests, Testimony and District records demonstrated that X did not make progress in Math while at the District.
IIIIIIIII is an **(((((aaaaa licensed ********* who evaluated X in 01/2012 and again in 03/2013, both at Parents’ expense. In 01/2013, IIIIIIIII administered standardized tests and reviewed previous evaluations. In 03/2013, IIIIIIIII administered standardized tests, but he did not review District records.
IIIIIIIII wrote 2 detailed reports, and concluded that X’s thinking ability and %%%%%%%% processing were in the ####### range, but his math achievement was disappointing, and 4 years behind his chronological grade level.
IIIIIIIII measured X at a 00 – 00 grade level in math in both 01/2012 and 03/2013. IIIIIIIII noted that between test administrations, X advanced 0.3 grade in math calculation and 0.6 grade in math rrrrrrrrrr.
For several years, the IEPs failed to offer X an opportunity to make progress in math. The record established that X demonstrated regression in many of his math skills while he was at the District. The District has underestimated how X’s disability affects him in the area of math. When asked to explain X’s disability, the CSE Chair (J) repeatedly stated that, “[X] has a disability in the area of hheeeeee” and she does not describe how his math deficits also affect his need for special education services (T 60; T 1291).
The record established that, between 08/20/2012 and 01/25/2013, X was working on goals similar to (or even less complex) than the goals he had previously mastered or had been making progress toward in the previous school year. In the 01/25/2013 IEP, as a 7th grader, X was assigned a goal relating to one-step addition, subtraction, multiplication and division .
X’s special education teacher (**) and the District’s consultant (+++++) both testified that X’s math goals as a 5th and 6th grader required a more complex set of skills than did the math goals that he was assigned on 08/20/2012 or 01/25/2013 (pls see p. 42 herein).
42 The District’s position in this regard was rejected by both the IHO and the SRO in the previous due proceeding (D 65, p. 15; D 66, p. 13). On 01/25/2013, the special education teacher (**) reported to the CSE that X was not doing well in math (T 1168). There is no evidence that X was receiving meaningful educational benefit from the math instruction and services that the District was offering.
D. Testimony demonstrated that X did not make progress in reducing his hheeeeee
)))))))))) while at the District.
While a student at the District, X did not progress in reducing his hheeeeee )))))))))). The ***** School !!!!!!!!!!!! (N) referred X for !!!!!!!!!!!! !!!!!!!!!!!! because: (1) X was afraid to open up to her and perhaps to cry in school, and (2) X didn’t want to be pulled from class or be seen going to or coming from her office (and thus drawing attention to himself).
Parents paid $100 per hour out-of-pocket for X’s !!!!!!!!!!!! !!!!!!!!!!!! with SS. Their health insurance didn’t cover the cost, and the District did not cover the cost even though the District had referred X for !!!!!!!!!!!! !!!!!!!!!!!!. X’s Mother would have preferred that X see SS more often, but it was a financial strain on X’s family. That X had only 6 !!!!!!!!!!!! sessions over the course of the 2012 calendar year did not mean that X successfully dealt with his )))))))))). X felt uncomfortable with his diagnosis of “!!!!!!!!!!!!”, felt that he didn’t fit in with either the disabled or non-disabled students at the District, felt that he wasn’t learning at the District, and didn’t like going to school at the District. X’s hheeeeee issues were mqqqqqqqqqq, but with the prospect of leaving the District, X showed some improvement in his hheeeeee / hheeeeee status.
II. In the IEPs at issue, the District failed to offer Appropriate Reading Services The District argued that “over the years the CSE closely monitored [X]’s evolving needs and modified his IEP accordingly.” In the 13/14 and 14/15 IEPs, the CSE continued to recommend hheeeeee instruction in qqqqqqq, together with instruction in a program known as iiiiiiiiiiii. I agree with Parents that the District has failed to meet its burden of proving that said hheeeeee services were reasonably calculated to provide educational benefit to X, particularly given X’s unique individual needs as a student with aaaaaaaaaaaa.
Given X’s lack of progress in hheeeeee at the District, the continuation of qqqqqqq was not reasonably calculated to provide X educational benefit. Nein, supra at 978 (a school’s continuation of essentially the same services that had failed a student during prior school years supported a finding that the offered IEP was not reasonably designed to provide the student educational benefit).
#### and @@@@@ (two **(((((aaaaa &&&&&&&s) questioned the effectiveness of qqqqqqq for X (pls see p.10 herein), because X was not responding to it. @@@@@ recommended that, “an alternative school should be considered” if X did not respond the programs offered by the District (D 44, p. 13). @@@@@ reasoned that, “the severity of [X’s] hheeeeee disability or !!!!!!!!!!!! and the extent of his word learning problems and related learning abilities mandate intense, deliberate instruction in word learning and related hheeeeee and hheeeeee-arts skills. A total immersion academic environment designed for students with his learning disability … [is] in his best interest.” (Id.) Z staff working with X agreed with #### and @@@@@. X’s 1st ***** teacher (KNR) opined that it would not be appropriate to continue instruction under a program in which a student had demonstrated little progress over a number of years (T 573-574), and which (compared to *****) is too elementary in nature. Notably, even though there was concern regarding the level of training and expertise of District staff to address X’s needs, the CSE removed the provision of an !!!!!!!!!!!! hheeeeee consultant in X’s 14/15 IEP (pls see p. 10, p. 31, herein) further exacerbating the ineffectiveness of the District’s program.
Although the District added an additional hheeeeee program to X’s IEP (iiiiiiiiiiii), the District offered insufficient evidence that the addition of this hheeeeee program was reasonably calculated to provide X with educational benefit, particularly given X’s individual needs. The District described iiiiiiiiiiii only in generalities.
For instance, although the 11/20/2012 CSE minutes note that iiiiiiiiiiii would replace qqqqqqq, the only description of iiiiiiiiiiii is that it is a “program to improve automaticity / rate of information retrieval” and that it “would possibly benefit” X (D 23, p.2). Interestingly, those minutes include the recommendation that the District replace qqqqqqq with iiiiiiiiiiii, based upon its failure to address X’s needs (a recommendation which diminished the District’s position that the continued use of qqqqqqq was appropriate).
The CSE Chair (J) provided general information about iiiiiiiiiiii. She identified it as: “**(((((aaaaa” and “addresses rrrrrrrrrr but also gets at **((((( and **(((((aaaaa and retrieval.” (T 1296). The District didn’t explain how iiiiiiiiiiii works or would be implemented, and /or the reasons that X would benefit from it. The District failed to give Parents any level of confidence that the teachers implementing it would be properly trained to implement it (T 1910-1911).
Although the District’s consultant (+++++) recommended iiiiiiiiiiii to “address a need that was currently unaddressed” (T 276) (again, an admission that diminished the District’s position that qqqqqqq was appropriate), this “unaddressed” need was not identified. @@@@@ cautioned against the implementation of iiiiiiiiiiii and qqqqqqq in combination (but the District recommended said combination in the 13/14 and 14/15 IEPs), opining that said combination would not be appropriate given X’s individual needs and learning style.
The CSE Chair (J) testified that she believed that the combined hheeeeee programs would benefit X because it had worked well for other students. However, she did not explain her reasons or how the combination would meaningfully benefit X individually. Nothing in the record provided information about the other students who she referenced (i.e., disabilities, learning strengths, weaknesses and/or needs). The CSE considered neither @@@@@’s cautions against the combination of hheeeeee programs nor @@@@@’s recommendations for programming.
Finally, although the District’s hheeeeee consultant (+++++) opined that the combination wouldn’t hurt, her opinion did not confirm that said combination would meaningfully benefit X. Notably, +++++ originally recommended that the District replace qqqqqqq with iiiiiiiiiiii. +++++ had limited information (if any) about X, as she had never evaluated, met or observed X.
III. In the IEPs at issue, the District failed to offer Appropriate Math Services Given X’s cognitive abilities, IIIIIIIII (an **(((((aaaaa licensed *********) testified that he would have expected X to make more than mere minimal progress (T 910). IIIIIIIII testified that X is capable of learning, and attributed X’s lack of progress to the choice of instructional approach (Id.).
When X began at Z, he, unlike the other 7th graders, was placed in a developmental math class (a class in which he was the only student), because he did not have the skill set for pre-algebra. When X entered Z, his math skills were “very weak”. X knew how to add and subtract but place value, multiplication and especially long division were a struggle.
Except for the addition of 1:1 math instruction 3/ 6 days 30 minutes in the 13/14 IEP, there is no evidence that the CSE recommended math instructional approaches any different from what the CSE had recommended in past IEPs and/or offered to change its approach, such as utilizing **(((((aaaaa instruction, daily small group support, and/or consistent reinforcement of math instruction and skills in a 1:1 setting.
These approaches had all been successful for X at Z, and the CSE was well aware that they’d all been successful at Z. Moreover, District records noted that: (1) when X was a student at the District, even as recently as 11/20/2012, he greatly benefitted from 1:1 support (D 9, p. 14), and
(2) the importance of providing X with 1:1 intense instruction and support in math (pls see herein p. 5 for D 18 past IEP, & p. 6 for D 32 IEP Progress Report). The District’s !!!!!!!!!!!! hheeeeee specialist noted the importance / necessity of 1:1 instruction for hheeeeee (p. 16 herein), and 2 **(((((aaaaa &&&&&&&s noted the same for all instruction (p. 7 & p. 9-10 herein).
Note that with respect to math skills, X : (1) required assistance getting started, (2) needed modeling, direct instruction, small group support and prompting to continue working thru an assignment, and (3) didn’t know what process was needed to solve a problem (pls see p. 5, p.6, p.
14 & p. 32 herein).
IV. There is No Merit to Parents’ Claim Regarding Appropriate Grouping Within
Recommended Placements It is now well-settled within the Second Circuit that retrospective testimony – i.e., testimony explaining how an IEP would have been implemented – is generally prohibited in tuitionreimbursement claims where the parent has unilaterally removed the student from the school district’s recommended placement and unilaterally placed the student in a nonpublic school. P.K. v. NYC Dep’t of Ed, 526 Fed. App’x 135, 141 (2d Cir. 2013); R.E. v. NYC Dep’t of Ed, 694 F.3d 167, 195 (2d Cir. 2012). The SRO has repeatedly followed and enforced the Second Circuit’s general prohibition against retrospective testimony. Application of a Student with a Disability, Appeal Nos. 13-041 & 14-008. Following the emergence of the prohibition against retrospective testimony in tuitionreimbursement cases, a corollary legal principle has emerged – class profiles constitute retrospective testimony and, by extension, are similarly prohibited in tuition-reimbursement cases. Relying on numerous federal court rulings, the SRO has succinctly explained that certain information, such as the students and teacher that will ultimately be in a particular class, is “inherently speculative” because for a variety of reasons, including reasons !!!!!!!!!!!! of the district’s control (e.g., students may move in or out of the district; teachers may retire or be reassigned to other positions), a district can never guaranty a specific teacher or student composition in a particular class.
Based on the above, during the 07/2013 and 05/2014 CSE meetings, the CSE did not develop or offer a class profile for the 12:1:1 special classes recommended. In contrast, the District was able to more easily develop a class profile for X’s recommended placement for the spring semester of 2013 because X had been in that class immediately prior to the 01/25/2013 CSE meeting. For these reasons, at the start of this proceeding, the District did not possess or disclose a class profile for the 13/14 or the 14/15 IEPs.
Thus, I will not consider the two class profiles on the grounds that they constitute inappropriate retrospective testimony.
V. There is No Merit to the Parents’ Bullying-Based FAPE Claim
Under limited circumstances, a student with a disability may be denied a FAPE due to bullying by other students. Dear Colleague Letter, 61 IDELR 263 (OSEP 08/20/2013). The key inquiry is whether the bullying resulted in the student not receiving meaningful educational benefit at school. The record falls short of establishing a FAPE denial on these grounds.
Two recent SRO decisions illustrate the analysis of FAPE-based bullying claims: Application of a Student with a Disability, Appeal No. 13-172 and Application of a Student with a Disability, Appeal No. 13-188. In these cases, the SRO dismissed bullying-based FAPE claims. I reach the same conclusion.
Most important: (1) District staff knew that X was subjected to teasing and hheeeeee rejection at the District, and (2) X may have been subjected to harassment and bullying at the District.
X’s Mother said that for years (i.e., before 2012), X was anxious and apprehensive about the possibility of being removed – and at times actually being removed – from the general education setting and placed into a self-contained class, such as the 12:1:1 placement at issue here (T 966968; T 985-989). X was concerned and self-conscious about being perceived by others, including his friends, as a student in a self-contained class (T 1850-1853). Then, after X was placed in the 12:1:1, X “didn’t feel like he fit in with that [12:1:1] classroom. He didn’t feel like he was one of them, not at all.” (T 1852).
Consistent with the above, X began to experience )))))))))) even before 01/2012, when he was actually placed in the 12:1:1 setting (T 1857). X’s )))))))))) may have been caused by his perception about how others saw him, as well as by the teasing and hheeeeee rejection that he undoubtedly experienced (e.g., in the school cafeteria at lunch, on the school football team, in the school hallways, on the school bus). Testimony by X’s Mother, N (the school !!!!!!!!!!!!) and SS (the !!!!!!!!!!!! !!!!!!!!!!!!), among others, confirmed X’s significant )))))))))). SS testified convincingly that such )))))))))) disrupted the learning environment for X at the District.
Aside from the bus incident (T 1964), the school !!!!!!!!!!!! (N aka Q) and the ***** School Principal (RE) did not recall any incidents involving X. The special education teacher (**) did not recall Parents ever contacting her about X being called a “!!!!!!!!!!!!”.
Parents were unable to confirm that they reported “bullying” (using that specific word) to the CSE, but Parents’ 02/17/2012 letter to the District Superintendent used that word and described incidents of harassment and bullying that took place on school grounds (P L). Accommodations (e.g., X meeting the bus [to attend +++++’s off-site tutoring] at the school’s rear door, X avoiding certain classroom seating near the hallway door, RE arranging for help re football plays) all confirm that District staff were well - aware of X’s distress.
The record does not establish that bullying resulted in a FAPE denial.
Prong Two
Parents met their burden of proving Prong Two of the Burlington / Carter criteria for tuition reimbursement. The evidence overwhelmingly supports Parents’ claim that Z is appropriate for X, and that Z is providing X with educational instruction specifically designed to meet the needs associated with X’s significant disability.
A. I reject the District’s argument that Z is deficient because it didn’t meet X’s needs in that it didn’t provide !!!!!!!!!!!! to address his hheeeeee )))))))))).
I find that X didn’t need !!!!!!!!!!!! for hheeeeee )))))))))) while he was a student at Z. I find it appropriate that Z didn’t provide !!!!!!!!!!!! to X for hheeeeee )))))))))).
It is clear that X experienced no hheeeeee )))))))))) at Z during the 2013-2015 school years, and very little hheeeeee )))))))))) at Z during the spring of 2013. Z staff convincingly testified that X is a good fit at Z, and that he’s thriving hheeeeeely and academically.
At Z, X enthusiastically and thoughtfully contributed to classroom discussions, had many friends and happily participated in athletics (e.g., Z’s modified lacrosse team) While a student at Z, X participated in activities in the general community (e.g., 4 H, lacrosse summer league, community ice skating rink). X had declined to so participate while he was a student at the District. Thus, although his contact with the general community was limited during school hours (because he was a student at Z), X participated in age-appropriate community activities during non-school hours. X has demonstrated hheeeeee / hheeeeee growth.
X would likely experience hheeeeee )))))))))) if he were to return to a 12:1:1 class in the District. X experienced test )))))))))) from time to time at Z, but less so in 9th grade than in 8th grade. Z offers formal !!!!!!!!!!!!, but X has not received formal !!!!!!!!!!!! at Z, and X’s teachers have not seen a need for such. It is not clear whether X has been informally counseled (i.e., by a teacher or academic advisor) for test )))))))))).
Z addressed X’s )))))))))) (if it actually existed at Z) by the very nature of its program, in which X did not need to hide from teasing by his same-aged peers, but instead felt comfortable and able to seek the help he needed, and in which he finally made progress across all realms of his development. Z worked on developing the organizational skills, self-advocacy skills and life skills X would need for participation in the general community.
Like X, some students at Z struggled with negative self-perceptions in their prior public school environments. Z serviced X (and all of its students) by providing smaller class sizes, more teacher attention, substantial advisor support, remediation in the areas of their academic needs, mandatory study halls and an overall environment structured to their academic needs.
X’s progress at Z is obvious to Parents. X is “happy and learning.” Citing X’s performance in the 4-H presentation (a public - speaking presentation conducted with non-disabled students), X’s Mother testified that X is more confident and has better self - perception than he did as a student at the District. Whereas X had no self-esteem or confidence at the District, X had gained self-esteem and confidence at Z. X enjoys and wants to attend school at Z.
The hheeeeee )))))))))) that had been a problem at the District is not a problem at Z. X needs no !!!!!!!!!!!! or accommodations for his )))))))))) because X does not suffer from )))))))))) at Z, and Z has prepared him for participation in the community.
In contrast, X’s )))))))))) was overwhelming him when he was placed in the 12:1:1 special education class at the District’s ***** School. It was sometimes impossible for Parents to get X to attend school. X was not benefitting from his exposure to non-disabled students in the general education setting and he avoided general community activities. The general education setting was increasing his )))))))))) and resulting in increased hheeeeee isolation.
B. I reject the District’s argument that X failed to make sufficient progress in reading at Z.
The District conceded that X made progress in math, **(((((aaaaa and use of technology at Z, as evidenced, in part, by the IEPs’ goals, and descriptions of academic needs and levels. I find that X also made progress in reading at Z, as evidenced by standardized tests and teacher reports.
To provide context to X’s reading abilities and performance, note that the 11/20/2012 IEP (when X was in 00th grade), as well as IEPs dated as far back as 03/30/2009 (when X was in
00 grade), all described X reading at a 00 grade level. Thus, progress in reading was virtually non-existent at the District. (In contrast, the 01/25/2013 IEP described X reading at a 00h grade level, but that accomplishment is questionable considering other data - see above). The District has acknowledged that Z has an outstanding program and a great reputation for servicing students with hheeeeee-based learning disabilities. Z also services students with math difficulties. Executive functioning skills are taught to all students to help them to develop organization, time management and study skills.
Z students attend classes 6 days per week. Each class period is 45 minutes long. Class sizes are small, with 4 - 7 students each. X received many opportunities for 1:1 instruction from his teachers during daily tutorials and daily study halls. These opportunities were beneficial because, as District records clearly indicated, X responds well to scaffolding, direct instruction, small group support and 1:1 instruction to gain a deeper understanding of concepts (i.e., modeling of homework / classwork expectations).
Z teachers have extraordinary teaching experience. Their ####### tenure is 13 - 14 years.
Z teachers have extraordinary training. They receive significant training in teaching students with !!!!!!!!!!!! and other hheeeeee-based learning disabilities. They attend conferences and “refresher courses”.
All Z teachers receive training in ***** - the **(((((aaaaa structured hheeeeeeally-based hheeeeee instruction program utilized at Z. Z’s ***** program is certified by the International **(((((aaaaa Structured Hheeeeee Education Council, which is a certification entity with the International Hheeeeee Association. ***** training is at least two (2) weeks long, and involves 60 contact hours All teachers student teach ***** for a period of time and create lesson plans and do observations.
***** is a remedial program to help students to develop skills in the areas of hheeeeee, including hheeeeee, aaaaaaaaa, rrrrrrrrrr, hhhhhhhhh, **(((((aaaaa, and **(((((aaaaa. As compared with qqqqqqq, which is elementary in nature, ***** is intended for adolescents and adults.
X’s academic advisor testified that it is important to incorporate ***** in all classes. All teachers apply ***** in their classes, and use a **(((((aaaaa approach to instruction.
At Z, X receives hheeeeee instruction in his English class (as well as in his ***** class). At every grade level, the English curriculum includes a hheeeeee hhhhhhhhh component, which itself includes understanding parts of speech and learning how to write basic sentence patterns, as well as various literature units, including poetry. Basic sentence patterns, which of course are syntactically correct, are taught so that the students can improve their understanding of how to write in sentence form. The hheeeeee hhhhhhhhh program follows the **(((((aaaaa structured approach, and is incorporated in all areas of instruction.
X made great progress in reading. X’s 9th grade ***** teacher (W) stated that X still required a lot of instruction in both hheeeeee and **(((((aaaaa, but had memorized many of the 116 ***** hheeeeee and made progress on applying them. W also testified that X had scored 100% on a **(((((aaaaa test. X’s 8th and 9th grade academic advisor (who was also his 7th and 8th grade history teacher) stated that X is working harder in 9th grade than he did in 8th grade, and both the advisor and X are pleased with the results. Based on aaaaaaaaa performed in class, X’s 8th and 9th grade teachers reported that X was making progress in hheeeeee rrrrrrrrrr, and displaying more comfort and less hesitancy with **(((((aaaaa words. In addition, his 8th and 9th grade teachers also reported progress in handhhhhhhhhh, in **(((((aaaaa and in sentence and paragraph composition.
In 2013, X was tested at Z. His hheeeeee and hhhhhhhhh rest results included: **(((((AAAAA 5 subtests scores were grade equivalents of 2.4 in rate, 1.7 in accuracy, and 2.0 in rrrrrrrrrr; **(((((aaaaa**(((((aaaaa score was grade equivalent 3.4; Slosson Oral Reading Rev’d score was grade equivalent 3.7; **(((((aaaaa – 4th Ed. scores were grade equivalents of 3.0 in Contextual Conventions and hh 3.0 in Story Composition. In 02/2013, an **(((((aaaaa &&&&&&& administered standardized tests to X and reported that X was reading at, generally, a 00 grade level. At the 01/25/2013 CSE meeting, X had mastered 00 grade level reading goals.
In 03/2014, about one year later, X earned the following grade equivalency scores on the Stanford Achievement Test’s hheeeeee and hhhhhhhhh subtests: (1) total hheeeeee – 3.4; (2) hheeeeee **(((((aaaaa – 4.6; (3) rrrrrrrrrrrrrrrrrrrr – 2.8; (4) hheeeeee – 2.4; (5) prehhhhhhhhh – 3.8; (6) composing – 3.1; (7) editing – 1.5; and (8) partial battery – 4.6. In the spring of 2014, X’s score on the **(((((aaaaa**(((((aaaaa test increased to a grade equivalent of 5.2, and X’s grade-equivalency subtest scores on the **(((((AAAAA 5 increased to 2.7 in rate, 3.7 in accuracy and 3.2 in rrrrrrrrrr.
Whereas X made 93 **(((((aaaaa errors during admissions testing in 01/2013, he only made 36 errors when re-tested in 03/2014. This, too, was a significant improvement. Thus, standardized test results demonstrated progress at Z.
X made great progress in hhhhhhhhh. Based on X’s progress in sentence and paragraph composition, the CSE progressed X to a more advanced hhhhhhhhh goal. Thus, the 13/14 IEP reinstated a “paragraph composition” goal that had been present in X’s IEPs from 03/30/2009 until 11/20/2012, but had been dropped from the 01/25/2013 IEP because X was “struggling to even identify a complete sentence” . The reinstatement of that goal after only one semester at Z is evidence of X’s progress.
X made great progress in math. X was tested at a mid 00 grade level in 03/2013 (by IIIIIIIII, an **(((((aaaaa &&&&&&& using standardized tests), and then at a mid 6th grade level in 03/2014 (on a standardized test administered at Z). X advanced from working on developmental math skills to more age - appropriate instruction in pre-algebra. X’s math teacher testified that as a 9th grader, X was working on solving multi sub equations and was “doing a phenomenal job.” The CSE acknowledged said progress.
X made great progress in the use of assistive technology. The consistent use of assistive technology is important to the education of students with !!!!!!!!!!!! and other hheeeeee - based learning disabilities. Z students are given laptops loaded with software (e.g., Power Point, **(((((aaaaa, **(((((aaaaa, organizers), and taught how to use them. Z students use their laptops daily in class and for homework. All classrooms have smart boards, which make the learning environment interactive and facilitate the peer editing process. At Z, X learned how to use a laptop and how to use software programs. X benefitted from his access to, and ability to use assistive technology, because it allowed him to have long passages in textbooks read to him, along with giving him access to **(((((aaaaa and definitions, and thus allowing for better hhhhhhhhh. X retained his computer skills over the 2013 summer, without regressing, and improved his skills from 7th grade to 8th grade.
Unlike the District, Z trained and appropriately supported X’s use of assistive technology. Z provided training to all students and teachers in the use of assistive technology. X’s Mother testified that although X rarely used assistive technology when he was a student at the District, X used it every day while completing homework for his classes at Z.
C. I reject the District’s argument that Z was inappropriate for X because it is overly and unnecessarily restrictive.
Parents have the burden of proving that Z is appropriate. “Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of [FAPE].” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d. Cir. 2006). The private placement does not have to meet the same state education standards or requirements such as employing certified special education teachers. Id. Parents are not held to the same mainstreaming requirements to which school districts are held. Id. See C.L. v. Scarsdale UFSD, 744 F.3d 826, 837 (2d. Cir. 2014); Schreiber v. East Ramapo CSD, 700 F. Supp. 2d 529, 549 (SDNY 2010) (quoting M.S. ex rel. S.S. v. Bd of Ed of Yonkers, 231 F. 3d 96, 105 (2d Cir. 2000).
Thus, the appropriateness of the level of restrictiveness of the parent’s placement should be assessed and considered in light of the services offered in that placement and the progress exhibited by the student in that setting.
In the instant, although Z is more restrictive than a District placement, Z is appropriate based on:
(1) the environment and services at Z from which X has clearly benefitted and (2) X’s academic and hheeeeee / hheeeeee progress, and knowledge of technology.
END
Footnotes
[1] On the 3d grade NYS assessments, X scored Level 1 and 2 in ELA and Math, respectively (P DD, p. 4).
[4] Given a main idea, **(((((aaaaaly demonstrate improved paragraph development by hhhhhhhhh a paragraph that uses a topic sentence, a minimum of 3 details, and a concluding sentence, all related to the assigned task.
[5] The rrrrrrrrrrrrrrrrrrrr goal that had been present in the 03/30/2009 IEP was dropped; there’s evidence that it was mastered at the 00 grade level ( D 32, p. 4).
[6] On the 5th grade NYS assessments, X scored Level 1 and Level 1 in ELA and Math, respectively (P DD, p. 4).
[7] **(((((aaaaaly write a paragraph with correct **(((((aaaaa, beginning capitalization and ending punctuation.
[8] The 03/28/2011 IEP is the first IEP to provide !!!!!!!!!!!!. It was recommended as of 09/2011. Neither it nor the IEPs that immediately followed stated a reason for said !!!!!!!!!!!! or a !!!!!!!!!!!! goal (D 12; D 13; D 15; D 17).
[9] On the 6th grade NYS assessments, X scored Level 1 and Level 1 on ELA and Math, respectively (P DD, p. 4).
[10] Starting in the 03/30/2009 IEP, X has used a calculator when computation is not the primary skill being assessed (D 12, p. 3; D 13, p. 3; D 17, p. 3; D 18, p. 2; D 19, p. 2). Before that, he used a chart (D 20, p. 4).
[11] The SRO noted that X showed marked variation within a single evaluation (D 66, p. 13) in that IIIIIIIII described X’s broad reading, basic reading skills and math calculation skills as being significantly lower than would be predicted by his oral hheeeeee ability (emphasis added, quoting D 45, p. 6). Thus, IIIIIIIII noted that X’s abilities exceeded his skill acquisition, and as a result, IIIIIIIII recommended a different instructional approach.
[12] The District’s expert on reading disabilities (+++++) opined that any student with a disability is at risk for experiencing )))))))))) (T 328).
[13] In 07/2012, the District hired an !!!!!!!!!!!! reading specialist (+++++) to instruct X 1:1 using qqqqqqq (which is based in !!!!!!!!!!!! techniques) (P P; D 37). That instruction continued for 6 months (D 37). X recognized that he made progress with that instructor (+++++) (T 1136; D 37; D 23, p. 2). X’s Mother was concerned that X believed that X could be successful only with that instructor (+++++) (T 1145 – 1147; D 23, p. 2).
[14] Re repetition of goals, pls see herein: p. 6, p. 7 & p. 9.
[15] !!!!!!!!!!!! was added (i.e., individual 2x/month 30 minutes) but only to correct an error. It had been omitted from his 08/20/2012 IEP. X actually had received !!!!!!!!!!!! since 08/20/2012 (D 9, p. 7; D 8, p. 7; T 94-95).
[16] The 06/04/2012 IEP (D 10, p. 5-6) had only 3 goals and they were precisely the same 3 goals as in the IEPs dated 03/08/2011 (D 17, p. 5), 08/11/11 (D 15, p. 5), 10/11/11 (D13, p. 5) and 11/23/11 (D 12, p. 5). The 1st 2 goals in the 06/04/2012 IEP were dropped in the 08/20/2012 IEP and replaced with 6 new goals. The 3d goal in the 06/04/2012 IEP (i.e., paragraph composition) was in IEPs dated 03/30/2009 (D 19, p. 5) and 03/24/2010 (D 18, p. 5) and was repeated in IEPs dated 08/20/2012 IEP (D 9, p. 6) and 11/20/2012 (D 8, p. 7) but it was too difficult for X and so it was dropped from the 01/25/2013 IEP (T 1322 – T 1325). Re repetition of goals, pls see herein: p. 6, p.7, p. 9, p. 11.
[18] The 01/25/2013, 07/03/2013 (13/14) and 05/28/2014 (14/15) IEPs did not provide training on software use for X or for his educational team (D 7; D 73; D 80; T 1438-1439; T 1441). The IEPs did not include a goal regarding use of the assistive technology services that those same IEPs provided (T 1440-1441).
[24] It’s not surprising that a learning disabled student might experience )))))))))) at a public school but not at Z (T 1075-1077; T 495; T 500; T 1549-1551). X’s !!!!!!!!!!!! !!!!!!!!!!!! (SS) was not surprised that X did not experience hheeeeee / hheeeeee concerns at Z (T 933).
[25] X’s history teacher (K) testified that X “doesn’t want to come off as needy”, and may (in the future) need !!!!!!!!!!!! for )))))))))) related to academics (T 1726-1727; T 1736-1738). X’s English teacher testified that X has test )))))))))) but less so in 9th grade than in 8th grade (T 1818; T 1838). X’s 7th grade history teacher reported test )))))))))) (P FF, p. 11).
[26] X’s %%%%%%%% hhhhhhhhh was stronger than his rrrrrrrrrrrrrrrrrrrr (D 18, p. 4; D 32, p. 4; herein p. 3, p. 19).
[27] O was also X’s 8th and 9th grade math teacher. His testimony concerning X’s math skills when entering Z is consistent with X’s classwork at the District (P EE, p. 10-15) and X’s testimony (T 1202-1203).
[28] B was X’s English teacher in 8th and 9th grades (T 1815).
[29] Y was X’s history teacher in 7th and 8th grades, and X’s advisor in 8th and 9th grades (T 1747).