Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

x In the Matter of the Impartial Hearing brought by XXXXand XXXXon behalf of their minor child,

XXXX

Petitioner,

v.

NYSED Case No. 87541

XXXX

Respondent. x

FINDINGS OF FACT AND DECISION

Lana S. Flame, Esq. Impartial Hearing Officer

April 8, 2015 The Parents of the student, through their attorney, filed an impartial hearing request on October 14, 2014. Parent Ex. A. The request was filed and heard pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. Sec. 1400, et seq., New York State Education Law and the New York State Commissioner’s regulations.^[1] A pre-hearing conference was held on December 4, 2014. The hearing was held on January 22, 23, and February 5, 2015.

The Parents alleged that the District failed to identify the student as a student with a disability, thereby failing their child find obligation during the 2013-2014 school year. The Parents further claim that upon their referral of the student to the Committee on Special Education (“CSE”) the District subsequently failed to classify the student as a student with a disability or provide her with the student’s needed special education services, thereby denying her a free and appropriate public education (“FAPE”). Parent Ex. A. The Parents unilaterally placed the student in the XXXX, allege that it is an appropriate placement for the student, and are seeking tuition reimbursement for the 2014-2015 school year. The XXXXis a private special education school that is not approved by the New York State Commissioner of Education to provide special education to children with disabilities. Parent Ex. JJ. The Parents also are requesting reimbursement for transportation at the IRS tax rate. Tr. 8.^[2]

The Decision Time Line

The parties jointly or individually requested extensions of the compliance date, which were considered and granted pursuant to the regulations. See, IHO Exs. II, IV, V, VI.

Facts

At the time of the hearing, the student was 10 years old and in the fifth grade at the

XXXX. She is not classified as a student with a disability. Tr. 254; Dist. Ex. 1.

In September 2011, at the start of second grade, the District “started RTI once a week with teacher” and “started reading support...” Parent Ex. G-2. The student’s teacher, XXXX, told the Parent that the student was easily distracted, was not finishing the assigned tasks, constantly was interrupting the lesson, performing poorly on tests, and was answering questions impulsively, often with the wrong answer. Tr. 256.

The student’s October 14, 2011 report card for first semester, second grade, shows that the student was approaching the standards in literacy skills (grade of “ in all skill areas except “ ” in word study) and was experiencing difficulty meeting the standards in math, social studies and science skills (grade of “ ”). Parent Ex. F-1.

The student’s second quarter report card, dated December 16, 2011, shows that the student improved from grades of “ ” in math, social studies and science skills to a “ ,” but dropped in all areas of literacy skills to a “ ” Parent Ex. H.

On January 3, 2012, the student’s teacher referred the student to the Child Study Team for concerns in reading, math and conceptual learning. Parent Ex. G. The teacher wrote: “[The student] has very weak comprehension skills and decoding words are [sic] difficult for her.” Id. The student’s teacher wrote that strategies used included preferential seating, redirection “when needed,” peer grouping, “one on one support when needed.” Id. The teacher wrote that the student “is very distracted by others. She loses her concentration and needs to be redirected through out [sic] the day.” Parent Ex. G-3. On a checklist, the teacher also indicated that she tried the following strategies: writing key points on board; breaking longer presentations into shorter segments; encouraging the student to restate key points in her own words; as well as various study skills and classroom management techniques. Parent Ex. G-4.

An Academic Intervention Services Progress Report dated February 2012, completed by the reading specialist, XXXX, for October to January, 2011-2012, indicates that the student is “[m]aking steady progress” in decoding, sight reading, self-correcting, and using punctuation to help make sense of a text. The student’s progress was “apparent” in comprehension skills. Dist. Ex. 6-1. During the fall, the student achieved a on the

3

DRA. In the winter, she achieved a Id. The student’s third quarter report card, dated March 9, 2012, showed increased grades in word study and listening/speaking to “ ,” but drops in reading and writing to a “ ” Problem solving and science dropped to and espectively, while number sense and social studies increased to a “ ” Parent Ex. I-1. The teacher commented: “[The student] needs refocusing to stay on task numerous times through out [sic] the day. She continues to have difficulty with comprehension when it is in a large or small group setting….She continues to work grade level skills at this time.” Id.

3 Developmental Reading Assessment 16 reflects “somewhere between early and emergent” reading skills. Tr. 511. A score of 20 reflects that a student “is making progress towards becoming an emergent reader, but is not there yet.” Tr. 511. The expectation is that a student at the end of grade one or beginning of grade 2 would meet level 16. Dist. Ex. 10; Tr. 516, 517. The teacher also commented that the student “continues to work hard when she is focused. Her decoding skills and phonemic awareness skills still pose a problem for her as a result it is affecting his [sic] comprehension. She continues to have difficulty putting thoughts to paper. Her high distractibility and constant need to be refocused affects these areas.” Parent Ex. I-2. The student received “ in all math skills, science, and social studies. Id. The student received grades of “ ”- “ ” in specials, work habits and social development. Id.

On March 27, 2012, a Child Study Team meeting was held and included the Parent, the student’s second grade teacher, the School Psychologist, XXXX, and the School Social Worker. Parent Ex. L. The minutes reflect that the student attends XXXX. Parent Ex. L-4. The teacher noted that saying the words more phonetically has helped to improve the student’s spelling. The student is struggling in comprehension. Parent Ex. L-4. Since a January 24, 2012, meeting, the student is sounding words out more, but still demonstrated some letter reversals. Id. See Parent Ex. O.

The student was recommended to receive Academic Instructional Services (“AIS”) of “Remedial Reading” and there was to be more communication with the school and XXXX, services that, according to the recommendation section of the form, the parents “will continue.” Parent’s Ex. L-5. The follow up date was noted as “next year.” Id.

An October 5, 2012, Mid-Semester Progress Report, for the first quarter of the student’s third grade year, reflects that the student was approaching standards in reading, word study, and listening/speaking skills, with “ ” as a grade. The student received a “ “ in writing. Parent Ex. BB. In math, the student received “ in both problem solving and number sense. Id. The teacher wrote that the student requires reinforcement of all of her math skills, particularly regrouping. In social studies and science, the student received “ ,” indicating that she meets the standards. Id.

On November 6, 2012, the Response to Intervention (“RTI”) team met. Parent Ex. FF2; Ex. J. The student’s teacher, Ms. XXXX, stated that the student is willing to do the work and make corrections. Parent Ex. FF-4. The student does not seem to be remembering the steps for subtraction and XXXXition. “Retaining information seems to be an area of difficulty.” Id. With respect to comprehension, the student is reported to understand the main idea, but not specific details. “Her oral comprehension is also low. Things need to be read to her 3 to 4 times. DRA is currently She was at the end of last year.” Id. According to the District, it would be expected that an average 3rd

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grade student would read at a level Tr. 516. A score of reflects “the beginning of emergent.” Tr. 511.

The RTI recommendations were for the student to receive AIS services three times per week with the teacher and remedial reading with XXXX, the reading specialist. Parent Ex. FF-5. In a follow up email from the school psychologist, XXXX, to Ms.XXXX, it was noted that the student “appears to be struggling in a few areas including reading.” Parent Ex. J-2. Classroom interventions were suggested to the teacher and a plan was made to assess the student’s progress in six weeks. The teacher noted that the student is “one of her lowest students….” Id.

The Parents took the student to XXXX for XXXXitional support in reading. Tr. 262. The student was assessed by XXXX on December 20, 2012. Results of the Gray Oral Reading Test 3 (“GORT 3”) rated the student as for Passage and Comprehension, and for Accuracy and Oral Reading Quotient. Parent Ex. M-1. On the California Achievement Test (“CAT”) the student scored in the % ( grade equivalent) in vocabulary, % ( grade equivalent) in Comprehension for a total reading score in the % ( grade equivalent). Id.

On February 1, 2013, during the next RTI meeting, the teacher reported that the student “has mastered regrouping.” Parent Ex. AA. The student is reported as “doing better in understanding steps in XXXXition and subtraction.” Id. It was noted that the student “still attends two outside tutoring programs.” Id. The student was attending XXXX twice a week, and an after school enrichment program to help with homework. Tr. 262.

The student’s writing and reading comprehension are noted as being “OK.” Id. The student was noted as not being in jeopardy of retention. The student was recommended to receive small group instruction and to have directions broken down. The teacher was to monitor the student’s progress and let the RTI team know if a follow up was needed. No follow up was recommended at that time. Parent Ex. AA-5.

At the end of the student’s third grade school year, the Parents were told that the student was performing grade level. Tr. 267.

At the start of the 2013-2014 school year, the Parents enrolled the student in a private general education school, XXXX School, because there were only 10-12 students per class with two teachers, compared to the District elementary school where there were 22-24 students per class, with one teacher and no other adults. Tr. 268. Despite being placed in a third grade rather than fourth grade class, at XXXX, the school work was too difficult for the student and she quickly fell behind, prompting the Parents to return her to the District. Tr. 269. The student returned to the District’s Elementary School in December 2013. Tr. 255. At XXXX, the Parents were told that the student did not have the foundation to move forward academically, and it was suggested that the Parents have the student evaluated for a learning disability. Tr. 269.

When the Parents returned the student to the school, the mother spoke to a director of special education (whose name she did not remember) and asked what the District procedures were for an evaluation. The Parent was told that the classroom teacher would first have to assess the student for several weeks to see if a referral was “appropriate.” Tr. 270-271. The Parents met with the student’s teacher after five weeks and were told that the student was easily distracted, was not performing at grade level and was in danger of retention. Tr. 271. The student then began to receive “reading resource.” Tr. 319.

The Parent told the student’s teacher that she was interested to have the student evaluated. The teacher told the parent that there was paperwork that the teacher would have to complete, and that the District discouraged teachers from making referrals. Tr.

274. The Parent understood that the teacher said that she would complete the paperwork, but that the process would take some time. Tr. 274.

By letter dated March 10, 2014, the student’s teacher was contacted by the XXXX to inform the teacher that the student was tested for XXXX reading and math program, and to request insight and feedback. Parent Ex. J-3. The teacher wrote that the student “needs support in reading comprehension (literal and abstract) writing for different genres, and understanding of math basics mult. & division.” Id. The teacher identified the student’s greatest needs as focus, “comprehension-literal questions,” multiplication and division, and “writing-for all areas fiction/non-fiction.” Id.

The Parent decided to have the student privately evaluated because of the student’s progress report, and the Parent thought that the District evaluation process would take some time. The Parent wanted “to move things along faster….” Tr. 278. The Parent arranged for a evaluation by Dr. XXXX XXXX, a New York licensed , starting March 12, 2014, and received the evaluation report at the end of May 2014. Tr. 279, Parent Ex. S.

In March 2014 RTI Review Forms, the teacher indicated that the student has weak literal comprehension, inferential comprehension and vocabulary. The student also is noted as “Unable to develop own stories with supporting details.” The student’s language skills are highlighted, indicating that the student has difficulty expressing ideas verbally, needs directions and questions repeated, and has difficulty understanding abstract concepts. Although noted to do better in math than reading, the teacher indicated that the student “has weak problem solving skills” and is “unable to apply math skills.” Parent Ex. J-7. The teacher described the student’s behaviors of concern as follows: “[the student] is easily distracted. She has difficulty staying on task. She often has to be redirected to the task. Can often be found playing and acting silly during a lesson.” Parent Ex. J-8. The student’s attention span is described as “short.” Id.

The teacher commented that a review of the student’s work reveals that the student puts in effort, “yet she doesn’t always understand what strategies to employ in reading, writing, and math. Her responses to literal questions don’t always relate to the question. Responding to making inferences is very hard….” Parent Ex. J-9. The teacher noted the student’s difficulty thinking both concretely and abstractly. Parent Ex. J-10.

On March 28, 2014, the parents received notice that the student was referred to the Instructional Support Team. The parents and student’s teacher were invited to attend a meeting of the Instructional Support/Response to Intervention Team. Parent Ex. 11, 12.

Minutes of the April 4, 2014, IST meeting reflect that the student is performing grade level in math, reading and writing. Parent Ex. J-14. The student reads well, but has difficulty with comprehension. Id. The Parent reported that the student attends the XXXX twice a week for math and twice a week for reading. Id. The recommendations included that the teacher would “do RTI in the classroom for math and reading” as well as monitor the progress weekly. Parent Ex. J-15.

On April 29, 2014, the student’s fourth grade teacher, Ms. XXXX, completed the Conners Teacher Rating Scale. Parent Ex. W. The teacher indicated that the student “very often, very frequently” has a short attention span, begins a task or project without making a plan, is excitable and impulsive, is easily distracted by sights and sounds, is side-tracked easily, and is constantly moving and fidgeting. Id. The teacher also indicated as occurring “often, quite a bit,” the student leaves her seat when she should stay seated, gets overly excited, fidgets or squirms in seat, is restless or overactive, has trouble getting started on tasks or projects, acts as if driven by a motor, forgets instructions quickly, talks out of turn, interrupts others and butts in, doesn’t pay attention to details and makes careless mistakes, talks too much, has trouble with reading, does not understand what she reads, forgets things already learned, has difficulty waiting for her turn, talks nonstop, gets up and moves around during lessons, needs extra explanation of instructions, has trouble concentrating, needs help to break a complex task into small more manageable pieces, inattentive and easily distracted, has difficulty organizing tasks or activities, and has trouble keeping her mind on work or play for long. Parent Ex. W.

Ms. XXXX wrote that the student “is not on grade level in reading, writing or math.” Parent Ex. W-4. Ms. XXXX also indicated that the student’s spelling “seldom” is poor, and “occasionally” cannot grasp arithmetic or remember what she reads. Parent Ex. W. The results of a diagnostic and instruction assessment, “i-Ready,” show that the student’s score dropped from a test given on March 21, 2014, to one given on May 16, 2014. Parent KK. On both test dates, the student was grade level for overall reading performance, with particular difficulty in comprehension. Parent Ex. KK, pp.2,3. The student performed well in phonological awareness and high-frequency words. Parent Ex. KK-3.

Minutes of a May 20, 2014, IST meeting reflect that the parent reported no significant improvement. Parent Ex. J-19. The teacher reported that the student shows inconsistent abilities. According to the i-Ready assessment, the student is reading two years grade level. The student’s math skills also are two years grade level. Id.; see, Parent Ex. KK. The student “does not grasp concepts very well.” Parent Ex. J-19. The teacher report reflects that the student works hard, is pleasant, and shows excitement when she grasps a concept, which she does not do “very well.” Id.

Although the Parent did not yet have a hard copy of Dr. XXXX’s evaluation at the time of the meeting, as reflected in the minutes, the Parent reported the verbal summary of the private evaluation results as provided to her by Dr. XXXX. Parent Ex. J-19; Tr. 279. The minutes also reflect that the student’s teacher took her own preparation time, and provided the student with individual assistance during the student’s special classes, such as art or gym. Tr. 319.

On her grade 4 ELA score for the 2013-2014 school year, the student achieved a scaled score of and Performance Level Parent Ex. E-5, D-3. The New York State Education Department score reporting documents state that students performing at Level “are well below proficient in standards for their grade. They demonstrate limited knowledge, skills, and practices embodied by the New York State P-12 Common Core Learning Standards for English Language Arts/Literacy that are considered insufficient for the expectations at this grade.” Parent Ex. E-5. On the State Mathematics test, the student received a scaled score of , placing her at a Performance Level The New York State Education Department score reporting documents state that students performing at Level “are well below proficient in standards for their grade. They demonstrate limited knowledge, skills, and practices embodied by the New York State P-12 Common Core Learning Standards for Mathematics that are considered insufficient for the expectations at this grade.” Parent Ex. E-7. On the Science New York State tests, the student achieved a “Performance Level” and final score of Parent Ex. E-3. A Level is described as: Student is unable to demonstrate understanding of the science content and concepts for the learning standards and key ideas assessed.” Id.

The Parents received Dr. XXXX’s written evaluation report dated May 27, 2014, at the end of May. On the Wechsler Intelligence Scale for Children (WISC) IV, the student’s overall full-scale IQ was in the range. The Kaufman Assessment Battery for Children, which also measures intelligence, shows “far more variability, but some scores within the range.” Tr. 366. Dr. XXXX also found significant variability in the student’s WISC IV scores. Parent Ex. S-4. To Dr. XXXX, this variability in the student’s profile “at the very least would put [the student] at risk for a learning problem or a learning disability.” Tr. 368-369. Dr. XXXX found that the student “is scoring within the range of intelligence on standardized tests of intelligence.” Tr. 367. The student’s memory skills also are within the range based on standardized scores. However, “measures of language are at the percentile in terms of retrieval of lexical items or word retrieval.” Tr. 367.

On the Wechsler Individual Achievement Test – Third Edition (WIAT-III) the student achieved the following results: Reading Comprehension – SS ( %), Math Problem Solving- SS ( %); Sentence Composition – SS ( %); Word Reading – SS %); Essay Composition – SS ( %); Pseudoword Decoding – SS ( %); Numerical Operations – SS ( %); Oral Reading Fluency – ( %); Spelling – SS

( %); Math Fluency XXXXition – SS ( %); Subtraction – SS ( %); and Multiplication – SS ( %). Parent Ex. S-9.

In order to determine whether the student had a learning disability, Dr. XXXX looked at the student’s standardized test scores, the State scores, the student report cards, information from the student’s teacher, information from the student’s parents, the child’s educational history including her pattern of success or failure, and Dr. XXXX’s own observations over four days of testing (March 12, 28, April 4, 25, 2014). Tr. 384385, Parent Ex. S. Dr. XXXX spoke to the student’s classroom teacher and reviewed some of her work samples. Tr. 422-423.

Dr. XXXX concluded that the student has a Tr. 360; Parent Ex. S. Dr. XXXX diagnosed the student, using the Diagnostic and Statistical Manual of Mental Disorders (“DSM”)-IV, with Disorder – Disorder, and Disorder of . Although the American Psychological Association recommended the use of DSM 5 by January 1, 2014, it was not enforced, the Department of XXXXXXXXHospital where Dr. XXXX is affiliated was not yet using it, and the health insurance companies were not accepting codes from DSM 5 during that period Tr. 50-51, 381, 399. The Parents’ insurance policy covered the evaluation using DSM-IV. Tr. 413-414. Dr. XXXX also thought that the student would meet the criteria for a under DSM 5. Tr. 382.

Dr. XXXX explained her findings:

Looking at all of the data including her grade level performance in the educational areas, the history of academic achievement or lack thereof, information from the teacher, information from the parents, the history of intervention that she had in terms of needing XXXXitional help and tutoring just to keep her going, the fact that the parents moved her to a smaller school with a smaller student’ teacher ratio to get more individualized attention.

And that wasn’t enough….So all of the above XXXXed to my conclusion that we had a significant learning problem that needed to be XXXXressed.

Tr. 422.

More specifically, Dr. XXXX found that the student had a disorder based on the results of the WIAT which show the student functioning at grade level in many areas, the student’s report card grades, information from the teacher and parents, a review of work samples and whether the student is able to meet State standards. Tr. 373-374. The teacher reported that the student was grade level. “And looking at the total picture, this was a child who was delayed in reading, meeting the operational definition of a disorder.” Tr. 374. The grade level equivalents on the standardized testing for various reading skills, ranged from grade months to beginning grade. Tr. 375-376. “A diagnosis of reading disorder is a delay in reading decoding, in reading rate or reading comprehension.” Tr. 382. Dr. XXXX “feel[s] that [the student] meets that criteria.” Id.

Dr. XXXX diagnosed the student with a disorder based on the standardized test scores, report cards, reports from the teacher and parents, and the State tests. Tr. 377. The variability indicated “the suspicion of a learning problem.” Tr. 378. Based on the WIAT III, the student was performing at the grade level on math problem solving. Tr. 380; Parent Ex. S-9.

Dr. XXXX diagnosed the student with based on several test results and pieces of information. Comparing the student’s behavior over the course of three testing sessions with other students her age, the student “was not able to maintain focus like other children her age.” Tr. 372. The student was “highly distractible.” Id. The results of the Conners Parent Rating Scale, third edition, and a Conners Teacher Rating Scale, completed by Ms.XXX, the student’s teacher, were “significant for .” Tr. 370. On a Narrative Memory Subtest, the student achieved within the range. Tr. 404; Parent Ex. S-19. Dr. XXXX explained that the student’s short-term memory can be good when the material is meaningful and it engages her interest. And this is certainly in contrast to other data points indicating that she had difficulty with other aspects of working memory, and she had difficulties with other aspects of auditory attention, such as the computerized testing.

Tr. 409-410, see Tr. 412. The student performed so poorly on the Integrated Visual and Auditory Continuous Performance Test (“IVA-CPT”), that she was “below the threshold level…not even making the level that you would even expect for an XXXX child, because she had such difficulty performing the task.” Tr. 395. The IVA-CPT is a “measure of the child’s ability to maintain their focus both visually or auditorily, and then those data are compared to the published norms of the control group and to a group of XXXX children.” Tr. 370.

As part of the evaluation, XXXXX, a , performed a Q-EEG, a brain wave pattern test. Tr. 370; Parent Ex. S-18. Dr. XXXX found the results of the Q-EEG significant and consistent with those common to XXXX children. Parent Ex. S-18, 28.

“The Conners Teacher Rating Scales were elevated for the Learning Problems/Executive Function Scale (T= ) and the Executive Functioning Subscale (T= ). In XXXXition, the Inattention (T= ) and Hyperactivity/Impulsivity (T= scales were very elevated (T-scores equal or greater than ). Based on Ms. XXXX’s ratings, a diagnosis of Disorder is strongly indicated ( % probability). She also reported that [the student’s] problems have a serious negative affect [sic] her functioning in the academic setting.” Parent Ex. S-17

Dr. XXXX recommended a program to XXXXress . Dr. XXXX recommended immediate resource room services in reading and math, individual work with a reading specialist trained in a multi-sensory approach to reading and writing (e.g., Orton-Gillingham or Wilson), school support “to enhance her ability to remember what she has learned through techniques” including, pre-teaching in small groups, paraphrasing in the student’s own words, and instruction in specific memory strategies. Parent Ex. S-25; Tr. 387. Dr. XXXX recommended that the student receive the following supports: extended time testing (50% XXXXitional time); testing in a separate and quiet location; directions and questions read aloud with comprehension confirmed; preferential seating near the teacher; refocusing when needed; reduction of ambient classroom noise; homework modification at teacher’s discretion; and explicit training in organizational and time management skills. Parent Ex. S, pp. 25,26.

In Dr. XXXX’s view, the student’s disability impacts her performance in the classroom. Tr. 387-388. Dr. XXXX thought that the student’s deficits required more intervention than what could be provided in a general education classroom environment since the student had been in a general education environment for years, with supports, and she had not done well. Tr. 388. If placed in a general education setting, the student needed more intervention that included special education support. Tr. 388, 425, 427. “[The student”] needed either resource room or specific curricula to XXXXress a

…. ” Tr. 418. “She would need to work with teachers who are trained in educating children with , or , in terms of a sequential program that would give her compensatory strategies for XXXXressing deficits in her reading, writing, and math abilities.” Tr. 427.

Dr. XXXX attributed the discrepancy between the student’s intelligence as reflected in the test scores with her grade level performance to a Tr. 391. “There’s no indication that it’s due to an emotional disability or a motivation problem or the issue of her being neglected or denied. So, the most parsimonious diagnosis, based on all of the data, is that it’s a ” Tr. 391. Dr. XXXX explained that a is “what would explain the data in the most direct and effective way.” Tr. 416; Parent Ex. S-28.

The student’s year-end report card shows that the student received a grade of “ ” in all substantive subjects for the final quarter. Parent Ex. V-1. The student’s teacher noted that she helps the student strengthen her reading foundation during the teacher’s Prep period. Parent Ex. V-3. Until the end of the school year, the Parent had been told that retention of the student was “still highly possible.” Tr. 280. The Parent received a telephone message from the classroom teacher stating that due to challenges to the District regarding retention, the student would not be retained. Tr. 280-281.

An e-mail dated June 30, 2014, from the Parent to the District indicates that the Parent had a conversation with the District regarding the evaluation of the student. Parent Ex. Q, R.

The Parent wrote in an email dated July 16, 2014: “It is my hope after she is classified with the district, we can move forward with the admission and transportation process.” Parent Ex. Q. The Parent testified that at that point she had not yet made up her mind to send the student to XXXX, but was “exploring all [of her] options.” Tr. 287.

On July 16, 2014, the Parent signed the consent form for the student to be evaluated for a Evaluation and a Social History. Dist. Ex. 2.

The District’s Dr. XXXX, conducted a evaluation on July 30, 2014, and issued the findings in an undated report. Parent Ex. P. The student’s cognitive ability was assessed using the Stanford Binet Intelligence Scales (SB-5). The student’s Full Scale IQ was in the with a Standard Score of and % rank. The student performed in the to range in the five domains of intelligence. Tr. 32-33; Parent Ex. P-2. Dr. XXXX noted that there “is a significant discrepancy among [the student’s] verbal and nonverbal skills; h she achieved at the percentile ( ) on the Verbal IQ index, and a score at the h percentile ( ) on the Nonverbal IQ index.” Parent Ex. P-2. In summary, Dr. XXXX noted that the discrepancy was “especially relevant among the ‘Knowledge’ and ‘Working Memory’ subtests, indicating that she will more easily acquire learned information through verbal and auditory presentations.” Parent Ex. P, pp. 4,5.

The student’s academic achievement was assessed using the Kaufman Test of Educational Achievement, Second Edition (KTEA-II). The results indicate that the student earned a composite score in the Range for Reading, and a score for Math, as noted in the scale provided in the report (“ =

”), not at the “higher end” of the “ ” range as stated by Dr. XXXX. See Parent Ex. P-4. The student’s Reading and Math Composite percentile scores %- Reading - SS ; %, Math – SS ) “are commensurate with her Verbal and Nonverbal IQ scores, as [the student] demonstrated a significant weakness among the Nonverbal index, which highly correlates with one’s math skills.” Parent Ex. P-5; see Tr. 39-40.

Comparing the student’s WISC scores with the student’s Stanford Binet results, the student performed consistently. Although scoring higher on the WISC Verbal Comprehension subtest ( Standard Score or % rank), than on the Stanford Binet Reading test % rank), both scores are in the e range. The Stanford Binet Reading test measures verbal ability nonverbally and verbally, reinforcing the finding that the student is an auditory learner. The nonverbal component of the Standford Binet somewhat depressed the student’s score. Tr. 43-44. The data supports that the student is primarily an auditory learner. Tr. 44. The student also scored similarly, in the range, for working memory and perceptual reasoning. Tr. 45-46.

Dr. XXXX “put a lot of stock” into Dr. XXXX’s findings, because she administered all of the tests before Dr. XXXX was able to perform them; the student should be administered the same test only once annually. Tr. 90. Dr. XXXX disagreed with Dr. XXXX’s diagnoses because Dr. XXXX based her diagnosis of a on the Diagnostic and Statistical Manual for Mental Disorders IV (”DSM-IV”), however, the manual was updated in May of 2013. Tr. 46-47; 48-49. According to Dr. XXXX, the Significant changes were made to the diagnostic criteria. Tr. 51-52. The DSM IV reliance on the discrepancy model, i.e., a clinically significant difference between scores on an IQ test and scores on an achievement test, to diagnose , was replaced with a four criteria model. Tr. 51-52. The criteria are: 1) the student is exhibiting learning difficulties despite the provision of evidence-based and targeted instruction to XXXXress those learning difficulties for a period of at least six months; 2) the student achieves clinically significant scores on a psychoeducational evaluation, based on age scores, not grade-based scores; 3) the difficulties begin when the individual is school-age; and 4) there are no environmental or biological factors that could be causing the learning disability symptoms. Tr. 52-53.

The DSM 5 “suggests that a percentile rank of 7 percent or below be used as the cutoff for what is considered pathological. Tr. 53, 108-109. A score between the 7th percentile and the 16th percentile would be what is considered a relative weakness. Tr. 109. The student did not “have any clinically significant deficits in psychological processes of language functioning, so she didn’t meet that first criteria for classification.” Tr. 110-111.

The student had only one score that fell below the percentile. In the Elision subtest on the Comprehensive Test of Phonological Processing (“CTOPP”), that assesses phonemic awareness, the student scored in the percentile. This score contrasted with other phonemic ability scores in which the student ranked % and the Memory for Digits on which she scored in the %. Parent Ex. S; Tr. 114-115. All of these tests were presented orally. Id. Although Dr. XXXX used the score as a basis for the diagnosis of XXXX, she did not explain why, given the other high scores in the same area. Tr. 121.

Dr. XXXX did not find that the student met the criteria to be considered a student with a

“She did not meet the clinically significant cutoff for any of the cognitive ability assessments or for the educational achievement assessments.” Tr. 56-

57. Dr. XXXX “did not feel that the XXXX diagnosis was sound based on the scores reported in Dr. XXXX’s report.” Tr. 57. Dr. XXXX did not think that the student met the criteria for the classification of “ ” because based on a review of all of the data in the progress reports, report cards, Dr. XXXX’s report and her own evaluation, the student did not suffer a limited strength of vitality or alertness even if she did have XXXX. Tr. 57. “…[T]he information provided by Dr.

XXXX does not warrant a classification of based on her diagnosis of XXXX. We also did not accept the diagnosis of XXXX based on the improper manual used and the to scores on all of the executive functioning tests given.” Tr. 83. Dr. XXXX’s impression of the Conners

Rating Scale completed by the student’s teacher was that the student struggled with impulsiveness and attention, and that she was fidgety. Tr. 84.

Dr. XXXX found the student to have many strengths, as noted on the student’s report card, that would be inconsistent for a student with XXXX or who has executive functioning deficits. Tr. 59-60, 86; Parent Ex. V-4. Dr. XXXX noted that the student completes her homework, is prepared, organized, and demonstrated grade level skills in her Media class in research questions, search strategies, reference materials and notetaking. Parent Ex. V; Tr. 58-61, 86. The student achieved scores in the average range on the test of Executive Functioning, administered by Dr. XXXX. Dr. XXXX explained that what one would expect to see with a student with XXXX that impacts on their learning, are clinically significant scores at percent or below on a majority of functions tested or, at the very least, a pattern of clinically significant scores. Instead, for example, Dr. XXXX interpreted scores on the Delis Kaplan test that were in the range, as disordered. Tr. 62-63; Parent Ex. S-16.

Despite the student’s low report card grades, Dr. XXXX attributed the student’s difficulty to her being primarily an auditory learner, not to a Dr. XXXX stated that auditory learners work best in groups because talking is more a component of group learning. With the roll out of the Common Core in the 2013-2014 school year, a lot of instruction is being done through worksheets and independent work, both difficult for an auditory learner. Tr. 68, 97. According to Dr. XXXX, based on the information provided by the two evaluations, the student would benefit from XXXXitional group instruction, auditory prompts, and opportunities to do self talk. Tr. 68.

The CSE suggested RTI for the student; since the CSE now knew that the student was an auditory learner, there were “things that the teacher can do to XXXXress that and to document [the] efforts….” Tr. 71. Dr. XXXX stated that another reason that a diagnoses could not be made, is because according to DSM 5, targeted RTI must first occur; once the problem is known, it needs to first be XXXXressed with an evidence –based intervention. Tr. 71.

Dr. XXXX further explained the student’s low academic grades: “The report card is a highly subjective measure of one’s skills. And it’s based on the perception of one educational professional in a snapshot in time.” Tr. 104-105. The student has solid reading comprehension scores, in the range on all assessments given, yet on her report card, she is not demonstrating that knowledge. Dr. XXXX’s view is that there’s not something wrong with the student, because they were clearly able to do the work and the skill based on the objective measures, but perhaps something that needs to be adjusted in the teaching style or the environment, and that’s where our RTI come in.” Tr. 105. The question is how to best allow the student to demonstrate what she knows. Tr. 106.

Although Dr. XXXX thought that the student had not been taught money skills or how to tell time, the Parent reviewed those skills with the student when the student was taught those skills as part of the third and fourth grade curricula. Tr. 294-295. The student still has not mastered those skills and is working on them now. Tr. 295.

The CSE met on August 7, 2014. A CSE Ineligibility Document, dated August 7, 2014, indicates that the individuals who attended the CSE meeting on August 7, 2014, were: XXXX , Chairperson; XXXX, School Psychologist;XXXX, Special Education Teacher;XXXX, General Education Teacher; and the student’s parents. Dist. Ex. 4-1. None of the individuals who participated were from the student’s Instructional Support Team or ever taught the student. Tr. 179.

The Prior Written Notice indicated that the standardized test results available to the CSE included: Kaufman Test of Educational Achievement – II(7/30/14); Comprehensive Test of Phonological Processing (“CTOPP”) (5/27/14); Conners Parent Rating Scale-Revised (5/27/14); Conners Teacher Rating Scale-Revised (5/27/14); Delis-Kaplin Executive Functioning System (“D-KEFS”) (5/27/14); Kaufman Assessment Battery for Children-Second Ed. (5/27/14). Dist. Ex. 4-2. The CSE also considered the social history, evaluation, and the private evaluation. Tr. 187. Dr. XXXX’s report was provided to the participants at the CSE meeting. Tr. 176. 289. Although some of the IST documents from 2012-2013 and from 2013-2014 were discussed, only Ms. XXXX had copies. Tr. 165, 168-170, 188-189. The May 2014 IST meeting minutes were not reviewed by the CSE. Tr. 177-178, 289. The student’s results on i-Ready assessments were discussed. Tr. 173-174. The CSE participants were not given copies of the student’s New York State test scores, nor were the ELA assessments reviewed. Tr. 172, 197-198. It is unclear whether the scores were discussed. Tr. 172-173. It is unclear whether all of the student’s report cards were available to the CSE participants. Tr. 170, cf. 194, 198, Dist. Ex. 1-1. The 4th grade report card was reviewed. Tr. 58-61.

Ms. XXXX XXXX, Special Education Supervisor, chaired the meeting. Tr. 130. The chairperson read through all thirteen classifications. The entire committee, including the parents, agreed that the only two that were considerations were and Tr. 119. The CSE read through the regulations in Part 200 and had a conversation about each of these two classifications and discussed why or why not the scores and data presented made a classification possible under those regulations. Tr. 119-120. There was a comparison of Dr. XXXX’s and Dr. XXXX’s reports. Tr. 178, 288-289.

According to Ms. XXXX, prior to determining that the student was ineligible for classification as a student with a disability, the CSE discussed that the student was responding to the intervention, and a student with a usually will not respond to an intervention with the pattern exhibited by the student. Tr. 149, 151, 183-

185. The pattern the student exhibited was described as “[i]ncremental increases in scores looking across all of the evaluative material….” Tr. 183-184. The documentation relied upon were the evaluations and IST documents showing that the student’s second grade Diagnostic Reading Assessment (“DRA”) scores had progressed from a to a

(Dist. Ex. 6-1), then in November of the following school year to a (Parent Ex. FF). Tr. 150, 163-164. Also, when teachers were able to have the student slow down the student improved. Tr.150-151. The CSE concluded that the student had made progress with the IST supports. Tr. 178. By Prior Written Notice, dated August 7, 2014, the District informed the Parent that the Committee on Special Education (“CSE”) recommended that the student is not eligible to receive special education services. Dist. Ex. 1. The CSE made this determination as explained in the Prior Written Notice because she:

Does not meet the criteria to be classified as a child with a disability and does not require special education at this time.

This action was proposed because [the student] received to e range scores on all academic areas assessed with standardized achievement tests on both the evaluation and the evaluation (KTEA-II and WIAT-III, respectively). She presented with a discrepancy among Non-Verbal and Verbal abilities in two out of four cognitive domains evaluated, in the areas of Knowledge and Working Memory. However, her fluid Reasoning and Quantitative Reasoning Skills were evenly developed among Non-Verbal and Verbal domains.

This suggests a varied learning profile; a is not indicated at this time.

The committee has determined that [the student did] not meet the criteria to be classified as a child with a disability under the two classifications proposed by an outside evaluation provided by the parent; and The outside evaluation reported diagnoses of a disorder, and Disorder of under the DSM-IV, without reference to the current Diagnostic and Statistical Manual of Mental Disorders (DSM-V). In XXXXition, it referenced grade-based scores as the sole rationale for this diagnosis, without

Acknowledging Average Range standard scores and percentile ranks in the areas of Reading and Math. For example, grade equivalents and standard scores are based on different scales and different comparisons; grade equivalents tell the grade at which the score obtained is an average one; the standard score tells you how the student compares to his or her peers, nationally….In general, the use of percentile ranks are considered “best practice” in the diagnosis of A diagnosis was also made for Disorder: as per

May 2014. The committee determined that [the student] did not suffer limited strength, vitality, or alertness in the educational setting as a result. Her report card indicated developing and/or consistent progress in the areas of social development, research strategies, note taking/summarizing, preparation/organization, classroom engagement, self-control, and judgment.

Dist. Ex. 1-1.

At the conclusion of the meeting, the parent was told that the student was ineligible for special education services. The CSE thought that many of Dr. XXXX’s recommendations would be helpful to the student and could be provided through a Section 504 plan. Tr. 290, 302-303. The Parent was informed that a 504 Committee meeting, chaired by the building level psychologist, would have to be convened to develop a Section 504 Plan. Tr. 302, 504-505.

On August 14, 2014, the Parent signed a tuition contract with XXXXfor the monthly tuition fee. Parent Ex. N; Tr. 292. On August 14, 2014, the parents enrolled in a payment plan to pay the XXXXtuition of $ Parent Ex. N; Tr. 493, 497-498. With automatic payments dating from September 16, 2014, to January 13, 2015, the parents have made payments of $ to XXXX. Parent Ex. II, Tr. 293, 490-492, 498.

By letter dated August 21, 2014, the Parents informed the District that they disagreed with the CSE determination of ineligibility. Parent Ex. GG. The Parents informed the District that they were planning to place the student at the XXXX, at District expense. Id. The Parents also requested transportation. Id.

In September 2014, the student began to attend the XXXX. Tr. 254. The Parent drives the student to and from the school. Tr. 293-294.

XXXXis a private school serving students with . XXXX is the student’s fifth grade special education teacher at the XXXX. Tr. 433-434. For reading, there also is an aide in the classroom who at times assists with individual instruction of a student or helps by circling the classroom and keeps the students on task. Tr. 483-

484. Ms. XXXX is a New York State certified general and special education teacher. Tr. 433. The student is taught math by Ms.XXXXX, a New York State certified special education teacher. Tr. 439. The two teachers communicate regularly about their shared students. Tr. 440. The student is in a class of twelve students, six boys and six girls. Tr. 464. All of the students have IEPs or IESPs, except the student. Tr. 464-465. The students function on an average to slightly above average range, cognitively. Tr. 466-467. In September the student presented as “very impulsive” and “very distracted.” Tr. 441. The student had difficulty with organization and executive functioning. Id. The student had difficulty with both expressive language and receptive language. Id. The student benefits from “constant” repetition and reinforcement. Tr. 441; see Tr. 454.

Ms. XXXX uses an Orton Gillingham based reading instruction program, Preventing Academic Failure (“PAF”), that incorporates writing and spelling, using a multi-sensory approach. Tr. 444-445, 451-452, 466. She also uses the Judith Hochman writing program, Basic Writing Skills. The class is divided into fluid reading groups ranging from approximately third to fifth grade levels. Tr. 446.

The students also are divided into groups for math instruction. The math range of the students is from approximately a grade level to approximately a grade level. Tr. 447.

The student specifically is given breaks as needed. To XXXXress the student’s difficulty with language, information is “constantly being broken down, clarified, repeated, simplified, according to what [the student] needs.” Tr. 445.

In math, the student is not fluent in basic operations, including subtraction, multiplication and division. “She has a very poor number sense, and she has difficulty recalling information to solve problems.’ Tr. 443-444. As a very concrete learner, the student struggles with math concepts. Tr. 444.

The school reports that the student is making progress. An October 10, 2014 Progress Report indicates that the student can become easily distracted and overly concerned with her classmates,” and that the teacher will “work on strategies to help keep [the student] remain focused on task, and develop improved listening skills.” Parent Ex. C.

A first quarter report card shows that the student needs improvement in composition/writing, speaking/listening, “[e]xhibits self control,” and [l]istens attentively.” Parent Ex. C-3.

The student was assessed in reading, writing and math, when she started in September 2014, and again at the end of January. Tr. 436. For reading, the student was assessed using the Fountas & Pinell guided reading system. Tr. 437. In September, the student was reading on a level “ ” meaning for instructional purposes, the student was on a to grade level because she could not both read and comprehend at that level independently. Tr. 438, 469 – 470; Dist. Ex. 8. The student’s greatest deficit was comprehension and relative strength was decoding. The student could answer literal questions with support. The student had “a very difficult time understanding inferential concepts, inferential reasoning, critical thinking skills.” Id. Sequencing was difficult for her as well. Id. In January, using Fountas & Pinell, the student was assessed at Level , approximately a to grade level for reading and comprehending the document independently. The score also indicated a to grade instructional level. Tr. 448, 456-457. Based on the student’s answers, Ms. XXXX was able to determine that the instructional level would be slightly higher. Tr. 470. From September to January the student had “fewer miscues or decoding errors,” and was self-correcting. Tr. 457. The assessment documents do not indicate the student’s scores. Tr. 463, 468-469. Ms. XXXX explained that she uses the Fountas & Pinell as an informal reading inventory, a “benchmark system which helps a teacher understand where to begin instruction….” Tr. 471. Since Ms. XXXX uses the assessment to plan instruction and to have a basis for instruction and assessment, she did not complete the scores. Tr. 471. Ms. XXXX was able to glean from the student’s errors and selfcorrecting that her comprehension had improved to the next level of instruction. Tr. 472-474.

The student’s issues with impulsivity, organization and attention impact her ability to learn in that she has difficulty understanding spoken language. The teacher rephrases what she says and breaks down the steps. Graphic organizers that are color-coded are used to reduce the student’s difficulties. Tr 455.

The Parent has seen an improvement in the student’s skills. The student’s vocabulary has changed and she has shown an increase in the student’s comprehension. Tr. 294.

Conclusions of Law and Decision

Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 [1982]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148. To determine whether a school district provided an appropriate education as required under IDEA, courts examine: 1) whether the school district complied with the procedural requirements of the IDEA; and, 2) whether the educational plan developed by the school was “reasonably calculated to confer educationl benefits to the child. Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 (1982). The importance of IDEA's procedural provisions was highlighted by the Rowley Court when it stated: “[t]he initial procedural inquiry is no mere formality.” Id. “Adequate compliance with the procedures prescribed [by IDEA] would, in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP.” Rowley, 458 U.S. at 206. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). Here, the District failed to provide the student with a FAPE by failing to classify her as a student with a disability and develop an appropriate IEP.

Eligibility for Special Education

The Student was eligible for classification as a student with The IDEA defines a "child with a disability" as a child with a specific physical, mental, or emotional condition, "who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1], [2]. "Such term does not include a child whose educational needs are due primarily to unfamiliarity with the English language, environmental, cultural or economic factors." Educ. Law § 4401[1]. In order to be eligible for special education and related services, a student must not only have a specific physical, mental or emotional condition, but in most of the disability categories enumerated under the IDEIA, such condition must adversely affect or impact upon a student's educational performance to the extent that he or she requires special services and programs. 34 CFR 300.8[c]; see 8 NYCRR 200.1[zz]; see C.B. v. Dep't of Educ. of City of New York, 322 Fed. App'x 20, 21-22, 2009 WL 928093 [2d Cir. Apr. 7, 2009]; Mr. N.C. v. Bedford Cent. Sch. Dist., 300 Fed. App'x 11, 13, 2008 WL 4874535 [2d Cir. Nov. 12, 2008]; A.M. v. NYC Dep't of Educ., 840 F. Supp. 2d 660, 688 [E.D.N.Y. 2012], aff'd, Moody v. NYC Dep't of Educ., 513 Fed. App'x 95, 2013 WL 906110 [2d Cir. 2013]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 296 [S.D.N.Y. 2010]; A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 306 [E.D.N.Y. 2010]).

Turning to the parents' contention that the CSE should have found the student eligible for special education and related services as a student with , according to State and federal regulations, is defined, as: "having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that . . . [i]s due to chronic or acute health problems such as," among others, "attention deficit disorder or attention deficit hyperactivity disorder." 34 CFR 300.8[c][9]; see 8 NYCRR 200.1[zz][10].

Dr. XXXX’s diagnosis of the student as having XXXX-Combined Type is supported by the record. Dr. XXXX credibly explained the validity of using DSM IV to diagnose the student at the time of the evaluation. Tr. 381, 399, 413-414; Parent Ex. S. Prior to Dr. XXXX’s diagnosis, the record shows that since second grade, the student’s classroom teachers and the student’s parents described her as highly distracted and impulsive. Tr. 256, 271; Parent Ex. G, I, J-3, J-8, W. Dr. XXXX observed the student as she completed the evaluation and was able to compare the student to similarly aged students, finding the student’s ability to maintain focus consistent with that of a younger child. Tr. 372. Dr. XXXX diagnosed the student based on the student’s history, Dr. XXXX’s own observations, the test results that reflected difficulty with auditory attention, those Q-EEG results that were significant and consistent with those common to children with XXXX, the Parent and Teacher Conners Rating Scale results, the student’s inability to perform the IVA-CPT, and interviews with the student’s Parents and fourth grade classroom teacher. Parent Ex. S-16, 17, 18. While the District pointed to scores indicating that the student could perform well on tests of short term memory, Dr. XXXX credibly explained that these were in contrast to other data and the overall picture of the student. Tr. 409-410. Similarly, the District argued that the student’s strengths in some areas of executive functioning were proof that she did not have XXXX. Yet, the Prior Written Notice that informed the parents of the student’s ineligibility did not dispute the XXXX diagnosis, but instead noted that the CSE declined to find the student eligible for a classification of because the student “did not suffer limited strength, vitality or alertness in the educational setting as a result” of the XXXX. Dist. Ex. 1-1.

In order to classify a student with , the student must exhibit limited strength, vitality, or alertness. 34 CFR 300.8[c][9]; see 8 NYCRR 200.1[zz][10]. The documentary evidence and testimony of the Parent, Dr. XXXX and the student’s current teacher all establish that the student in fact suffered from limited alertness in the classroom. Parent Ex. G, I, J-3, J-8, W. In second grade, the classroom teacher repeatedly noted that the student was highly distractible and needed constant refocusing; she struggled with comprehension especially in a large or small group setting. Parent Ex. I. In fourth grade, the student was reported to have a short attention span and was easily distracted. Parent Ex. J. In April 2014, the teacher completed the Conners Rating Scale with answers that reflected significantly elevated scores for inattention, hyperactivity and impulsivity. Parent Ex. S-17. The Parent testified about the student’s impulsivity and difficulty completing homework. Dr. XXXX noted the student’s age ability to focus and her inability to complete the IVA-CPT because of her inability to focus. Tr. 395. XXXX’s testimony corroborated the information that was available to the CSE at the August 7, 2015, review; the student requires regular redirection and refocusing, and struggles to attend. Tr. 455; Parent Ex. C.

The CSE found that the student did not exhibit limited strength, vitality, or alertness because the student’s report card “indicated developing and/or consistent progress in the areas of social development, research strategies, note taking/summarizing, preparation/organization, classroom engagement, self-control, and judgment.” Dist. Ex. 1-1. In fact, the student’s fourth grade report card shows that the student demonstrated understanding or progress in “research strategies, note taking/summarizing, preparation/organization,” only in the area of “Media,” while for her overall level in “Work and Study Habits” she received a grade indicating that she “does not yet demonstrate an understanding of concepts, skills and processes taught…and needs consistent support.” Parent Ex. V, pp. 2-3. The CSE latched on to the very few skills of successful executive functioning demonstrated by the student as well as the standardized test scores, and ignored the multiple classroom teacher and Parent reports of high distractibility, impulsivity, and the need for constant redirection, repetition and refocusing of a student who otherwise was described in positive terms and as a hard worker. Parent Ex. I, J-10, J-19. Notably, none of the student’s teachers participated in the CSE meeting and none of the District CSE members spoke to the student’s teachers or reading specialists prior to the CSE meeting or conducted a classroom observation of the student prior to the CSE meeting. Tr. 94-95, 153-155, 161-162. Nor did the District call any of the student’s prior teachers to testify. Based on the record evidence, the student is found to exhibit limited alertness within the meaning of the IDEIA and regulations.

Last, in order for a student to be found eligible for a classification of ,a determination must also be made regarding whether the student's conditions or deficits adversely affected her educational performance. See 34 CFR 300.8[c][4][i], [9][ii]; 8 NYCRR 200.1[zz][4], [10]).

In the Second circuit, whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEIA, the issue is resolved on a "case-by-case" basis. Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000] [holding that each child is different and the effect of each child's particular impairment on his or her educational performance is different]; see Maus v. Wappingers Cent. Sch. Dist., 688

F. Supp. 2d 282, 294, 297-98 [S.D.N.Y. 2010] [emphasizing that educational performance is focused on academic performance rather than social development or integration]; see also C.B. v. Dep't of Educ., 322 Fed. App'x at 21-22 [2d Cir. April 7, 2009] [finding insufficient evidence that student has suffered an adverse impact on educational performance because the student continuously performed well and tested above grade level on the district's psychoeducational evaluation and a psychological evaluation]; Muller v. E. Islip Union Free Sch. Dist., 145 F.3d 95, 103- 04 [2d Cir. 1998]; A.J. v. Dep't of Educ., 679 F. Supp. 2d 299, at 308-11[E.D.N.Y. 2010] [noting the difficulty of interpretation of the phrase "educational performance" and that it must be "assessed by reference to academic performance which appears to be the principal, if not only, guiding factor"]; N.C. v. Bedford Cent. Sch. Dist., 300 Fed. App'x at 13 [holding that there is insufficient evidence that the student's educational performance was adversely impacted because the student did not fail any of his classes and his gradepoint average (GPA) declined only nine points]; New Paltz Cent. Sch. Dist v. St. Pierre, 307 F. Supp. 2d 394 at 399 [N.D.N.Y 2004]); Eschenasy v. New York City Dep't of Educ., 604 F. Supp. 2d 639, 649-50 [S.D.N.Y. 2009] [finding that the SRO's conclusion that there was insufficient evidence of an adverse effect on the student's educational performance was "directly contradicted by [the student's] failing grades, repeated expulsions, suspensions, need for tutors and need for 14 summer school]; W.G. v. New York City Dep't of Educ., 801 F. Supp. 2d 142, 170-75 [S.D.N.Y. 2011] [finding insufficient evidence that the student's "academic problems—which manifested chiefly as truancy, defiance and refusal to learn—were the product of depression or any similar emotional condition”].

The student’s failing grades in all substantive subjects, her poor performance on the State standardized exams and the repeated warnings of the teachers to the student’s parents that the student was in danger of retention, all unrebutted on the record, establish that the student’s behaviors impeded her ability to learn. Parent Ex. E, F, H, G, I, J-3, J-7, J-14, J-19, AA, BB, S-17; Tr. 271-281. The student’s poor academic performance cannot be minimized by attributing her very low grades to the subjective view of one teacher, as suggested by Dr. XXXX, when those grades are consistent with previous reports and the student’s performance on the State tests. Tr. 104-105. XXXXitionally, Dr. XXXX and the student’s current teacher testified that the student’s behaviors impact on her ability to learn. Tr. 387-388, 455.

The District’s argument that the student does not require special education and related services within the meaning of the IDEIA as a result of the alleged disability is without merit. Year to year, the student’s teachers and the remedial reading teacher, without either Dr. XXXX’s or Dr. XXXX’s evaluations, implemented many of the recommendations made by Dr. XXXX. The overwhelming evidence shows that even with preferential seating, directions or information repeated, redirecting, refocusing, peer grouping, confirming student comprehension by having the student restate key points, breaking down information, remedial reading, and one on one support, the student made minimal progress in the general education setting without special education services or supports. Parent Ex. G, FF, J, V, Tr. 262, 271, 319. For three years the District provided the student with a combination of Academic Intervention Services and Response to Intervention services, to little avail. That the student now was identified as an auditory learner by the evaluations does not give the District another opportunity to provide the student with inappropriate services. Dr. XXXX explained that the student would do well with group learning and “responded very well” to interventions such as redirection, refocusing and restating of directions. The record shows that the student was distracted by working in groups and showed no meaningful progress with the interventions Dr. XXXX promoted. Parent Ex. I, G, J, V. While Dr. XXXX thought that the student could receive educational benefit in a general education setting, it was only with the support of special education services. Tr. 388, 418, 425, 427.

Based on the entire record, the student meets the criteria of a student with and is eligible for special education. The District improperly failed to classify the student and develop an appropriate Individualized Education Program (“IEP”), thereby denying the student a free and appropriate public education for the 2014-2015 school year.

On the record before me, I am unable to XXXXress whether or not the student meets the criteria to be classified with a because I do not have sufficient information to make a determination. In order to better understand the student’s deficits and needs, and to plan appropriately for the student’s education for the 2015-2016 school year, the District shall provide the student with an independent evaluation.

Child Find

The purpose of the "child find" provisions of the IDEIA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. See Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of 16 Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] affd 2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]. The "child find" provisions of the IDEIA place an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (^[20] U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 129 S. Ct. at 2495; see As detailed in depth above, the student made minimal, if not trivial progress during the 2011-2012, 2012-2013, and 2013-2014 school years, despite the District’s interventions and the Parents’ increasing provision of outside services for the student. The District failed to initiate a referral and request parental consent to evaluate the student in order to assess and determine the student’s need for special education services and programs, after the student failed to make adequate progress and consistently struggled with her ability to attend. Accordingly, a Child Find violation occurred, as school officials overlooked clear signs that should have been XXXXressed by a referral and evaluation, and had no rational justification for deciding not to evaluate the student prior to July 2014. A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]. The remedies available for a Child Find violation are ordering evaluations, possible classification of the student, and compensatory education. The student has been evaluated and I have determined that she should have been classified with other health impairment. Here, the Parents have not asked for compensatory education, and even if I were inclined to award it, the record evidence is inadequate for such an award.

Appropriateness of the Parents’ Unilateral Placement

The XXXXis an appropriate placement for the student for the 2014-2015 school year.

Parents seeking reimbursement for a unilateral placement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007]; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.

Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112; see Frank G. v. Bd. Of Educ., 459 F.3d at 364-65 (2d Cir. 2006). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993]. The private school need not employ certified special education teachers or have its own IEP for the student. Id.

Based on the testimony and documentary evidence, the Parents have proven that the XXXXwas an appropriate placement for the 2014-2015 school year. XXXXis an elementary school dedicated to providing a language-based academic curriculum for children in second through eighth grade, who display impairments, on . Parent Ex. JJ; Tr. 482-483. Although it is not required of a parental placement, the student’s head teacher and math teacher are certified in special education. Tr. 433, 439-440. The student benefits from the small class size, and smaller groupings for reading and math, devised based on the students’ level and needs. Tr. 446-447, 483. The student is in a class with students of similar cognitive abilities and age. Tr. 466-467. Ms. XXXX testified knowledgeably about the student. She described the student as a concrete learner. Tr. 444. In September, the student struggled with impulsivity, attention, organization, and executive functioning, as well as expressive and receptive language. Tr. 441. Ms. XXXX XXXXresses the student’s needs with “constant” repetition and reinforcement. Tr. 441. The student is given breaks as needed. In order to XXXXress the student’s difficulty with language, the information constantly is simplified, clarified, and repeated according to the student’s needs. Tr. 445. In reading and writing instruction, Ms. XXXX uses a variety of multi-sensory techniques that XXXXress reading and language deficits: Preventing Academic Failure; XXXXBasic Writing Skills; and XXXXXXXXXMethodology. Tr. 444, Parent Ex. JJ-6. In September, the student was assessed to be reading at approximately a grade level independently, and a grade level for instructional purposes. Dist. Ex. 8, Tr. 469, 478. In January, Ms. XXXX administered the same assessment tool in order to check the student’s progress and plan for the student’s instruction. Based on the number of errors the student made and her ability to self-correct, Ms. XXXX determined that the student could independently read and understand material at a to grade level, so instruction would be aimed “slightly higher.” Tr. 469-470. The student’s first quarter report card reflected that was “doing well with much support and scaffolding.” Parent Ex. C-3. The student received an overall “ ” average and indications that she needed improvement in areas of listening/speaking, self-control, and attention.

Ms. XXXX sees the student making slow and steady progress. “She’s learning how to attend to tasks at hand. She is learning to self-monitor. She is learning to become aware or when she is losing focus and when she’s becoming distracted and when she she does need a break. And on top of that, she’s learning how to ask for a break.” Tr. 451. The Parent has seen improvement in the student’s comprehension which she attributed to the student’s changed use of vocabulary. While the District argued that the placement is too restrictive because the student is exposed only to disabled peers, I have considered the desirability for the student to be in the least restrictive environment (“LRE”) as is required for District placements, and on balance find that the benefits of XXXXoutweigh the LRE considerations in this instance. See Gagliardo, 489 F. 3d at 108; Rafferty v. Cranston Pub. Sch. Comm., 315

F. 3d 21, 26-27 (1st Cir. 2002). Based on the record evidence, the Parents have demonstrated that the XXXXis an appropriate placement for the student. The student is able to interact with students who are cognitively on the same level. The student’s teacher is aware of the student’s deficits and needs, and provides instruction and support to XXXXress those needs so that the student has benefitted from the instruction. Accordingly, the Parents have met the burden of proving that the XXXXis an appropriate placement for the 2014-2015 school year. Equitable Considerations

Equitable considerations weigh in favor of ordering tuition reimbursement to the Parents.

Even though the student is found to have a disability and the parents’ private placement appropriate, it must be determined whether equitable considerations support the parent's claims and reimbursement can be ordered. Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 247 (2009). Equitable considerations are relevant to fashioning relief under the IDEIA. Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); see Carter, 510 U.S. at 16. Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEIA states that tuition reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the Parents’.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III). In XXXXition, a parent must give the District an opportunity to cure alleged defects in a student’s educational program. See Forest Grove, 129 S. Ct. at 2496 (courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant, for instance, if the Parents’ failed to give the school district adequate notice of their intent to enroll the child in private school).

Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A major consideration in deciding whether the equities favor the parents, is whether the parents have cooperated with the District throughout the process to ensure that their child receives a FAPE. See Bettinger v. New York Bd. of Educ., 49 IDELR 39 (S.D.N.Y. 2007). Courts have disfavored Parents who never intended to enroll their child in a public school and only went through the CSE and impartial hearing processes hoping to get an award of tuition. P.G. v. N.Y.C. Dep’t of Educ. 959 F.Supp2d 499 (S.D.N.Y. 2013).

The IDEA requires parents to provide notice of unilateral placement either at the most recent CSE meeting, prior to removing the Student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

The hearing record shows that the Parents fully cooperated with the District and made every effort to have the student appropriately educated in the District schools. The Parents did nothing to hinder the development of an Individualized Education Program for the student. Since the student was in second grade, the Parents were in frequent communication with the student’s teachers and building level support personnel, and expressed their concerns. Parent Ex. F, G, J, T, AA, CC. Despite the Parents’ repeated requests for assistance and the District’s knowledge that the student was making minimal gains even with the Parents providing for private tutoring and afterschool enrichment services, ultimately it was the Parents who referred the student for an initial evaluation which was completed in July 2014. The hearing record indicates that the Parents explored every option provided by the District, attended each AIS or RTI meeting, fully cooperated during the CSE assessment process, and sent correspondence to the District expressing their concerns regarding the student’s difficulties. Parent Ex. J, L, Y, AA, DD, GG.

Notably, upon the Parents receipt and review of the CSE Ineligibility Determination letter, the Parents wrote a letter to the District, specifically articulating their concerns and their basis for unilaterally placing the student; the District failed to respond to this letter. P. Ex. GG.

The District asserted that the Parents never intended to send the student to the District schools as evidenced by the July 16, 2014 email in which the Parent wrote: “It is my hope after she is classified with the district, we can move forward with the admission and transportation process.” Parent Ex. Q. The Parent testified credibly that at the time of the email she was exploring all of the options for the upcoming school year, including XXXX, and that she had not already determined to send the student to the private school. Given the Parents repeated efforts over three years to keep their daughter in the District schools, by attending all meetings, communicating with her teachers, and providing outside tutoring services at their own personal expense, the record indicates that the Parents would have considered an appropriate District recommendation. The Parents continued to act in good faith and cooperatively throughout the CSE process. This one email, in the context of the Parents cooperation does not put the Parents behavior in line with those cases that deny parents reimbursement because they were gaming the system or never intended to place their child in a district program. Cf. P.G. v. N.Y.C. Dep’t of Educ. 959 F.Supp2d 499 (S.D.N.Y. 2013); J.P. ex rel. D.P. v. New York City Dep't. of Educ., 2012 WL 359977 (E.D.N.Y. Feb. 2, 2012); Thies v. N.Y.C. Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 661 (S.D.N.Y. 2005).

Here, the Parents applied and signed a contract with XXXX, for the 2014-2015 school year in August 2014. Parent Ex. N. The Parents made monthly payments to the school for the Student's 2014-2015 tuition in September 2014, October 2014, November 2014 and January 2015, and continue to pay the tuition monthly. Parent Ex. N, II; Tr. 490499.

On balance, the equities weigh in favor of the Parents and justify an award of tuition reimbursement costs for the 2014-2015 school year.

In conclusion, the district denied the student a FAPE for the 2014-2015 school year by failing to classify her as a student with a disability and failing to develop an appropriate IEP so that she could derive meaningful benefit from her educational setting. The XXXXis an appropriate placement for the 2014-2015 school year, and equitable considerations favor tuition reimbursement to the Parents.

Accordingly it is ordered that:

1. The District shall pay for an independent evaluation of the student, in order to adequately plan for the student’s educational needs for the 2015-2016 school year.

2. The District shall reimburse the Parents for the cost of the student’s 2014-2015 tuition at the XXXXand transportation costs upon proof of payment by the Parents. ____________________________________

Lana S. Flame Impartial Hearing Officer

Date: April 8, 2015

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the XXXX has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

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

Directions for filing an appeal and forms can be found on the Office of State Review website: www.sro.nysed.gov/appeals.htm. XXXXand XXXXParents of P.P. v. XXXX

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 4, 2014

XXXX XXXX, Esq., Attorney for the — Parents

XXXX, Esq., School District Attorney — District

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 22, 2015

XXXX XXXX, Esq., Attorney for the — Parents

XXXXand XXXXParents — Student

XXXX, Esq., School District Attorney — District

XXXX XXXX, Director of Special Education — District

XXXX, School Psychologist — District

XXXX XXXX, Special Education Supervisor — District

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 23, 2015

XXXX XXXX, Esq., Attorney for the — Parents

XXXX, — Parents

XXXX, Esq., School District Attorney — District

XXXX XXXX, Director of Special Education — District

XXXX, School Psychologist — District

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 5, 2015

XXXX XXXX, Esq., Attorney for the — Parents

XXXXand XXXXParents — Student

XXXX XXXX, Clinical Psychologist — Student

XXXX, Special Education Teacher, XXXX — Student

XXXX, Esq., School District Attorney — District

XXXX XXXX, Director of Special Education — District

XXXX, School Psychologist — District

P. XXXX v. XXXX Evidence List — District

DOCUMENTATION ENTERED INTO THE RECORD January 22, 2015

1 Prior Written Notice District

08/07/2014, 2 pp.

2 Consent for Initial Evaluation District

07/16/2014, 1 pg.

3 Entry/Withdrawal List District

06/30/2010 – 10/31/2014, 1 pg.

4 CSE Ineligibility Document District

08/07/2014, 3 pp.

6 Academic Intervention Services Progress Report District

Grade 2, 2011-2012, 02/2012, 3 pp.

7 Academic Intervention Services XXXX District

City School District Plan September 2012-August 2014, 16 pp.

A Impartial Hearing Request Parent

10/14/2014, 8 pp.

B Memorandum to State Directors of Special Education Parent

From XXXX XXXX, 01/21/2011, 3 pp.

C Progress Report and Class Schedule Parent

10/10/2014, 3 pp.

D Emails between XXXX XXXX and XXXX Parent

10/01/2014, 4 pp.

E New York State Assessment - Parent Report Parent

2013-2014, 8 pp.

F Mid-Semester Progress Report Parent

11/11/2014, 1 pg.

G Child Study Team Referral Form Parent

03/12/2012, 2 pp.

I Mid-Semester Progress Report Parent

03/09/2012, 2 pp.

J Child Study Team Referral Form IST/RTI Meeting Parent

11/16/2012-05/20/2014, 22 pp.

K Mid-Semester Progress Report Parent

03/09/2012, 2 pp. (withdrawn 2/5/15)

L Child Study Team Meeting Notice Parent

03/16,27/2012, 5 pp.

M XXXXAssessments & Account Statement Parent

01/13/2012-08/08/2014, 14 pp.

N Enrollment Form Parent

08/14/2014, 1 pg.

O XXXXReport Parent

03/27/2012 7 pp.

P Report Parent

07/30/2014 5 pp.

Q Email from XXXXto XXXX Parent

07/16/2014 1 pg.

R Email from Ms. XXXX to XXXX Parent

07/30/2014 1 pg.

S Evaluation Parent

03/27/2014 34 pp.

T Instructional Support Team Attendance Sheet Parent

03/14/2014-05/20/2014 1 pg.

U IST/RTI Meeting Notice Parent

05/06/2014 1 pg.

V CSD Report – XXXX Parent

2013-2014 9 pp. (withdrawn 2/5/15)

W Conners Teacher Rating Scale 3d Edition Parent

04/292014 2 pp. (withdrawn 2/5/15)

X XXXXProgress Report Parent

04/15/2014 5 pp.

Y IST/RTI Team Review Form Parent

Various Dates 7 pp.

Z XXXXProgress Report Parent

Various Dates 3 pp.

AA RTI Meeting Records Parent

02/01/2013 5 pp.

BB Progress Report Parent

10/05/2012 4 pp.

CC Child Study Team Notice Parent

01/24/2012 1 pg.

DD Email Parent

10/15/2012 2 pp.

EE RTI Notice Parent

12/14/2012 4 pp.

FF RTI Notice Parent

11/06/2012 5 pp.

GG Letter to District Parent

08/21/2014 2 pp.

DOCUMENTATION ENTERED INTO RECORD January 23, 2015

I Notice of Scheduled Pre-Hearing Conference, 12/2/14, 1 pg. IHO

II Order to Extend the Compliance Date, 12/5/14, 1 pg. IHO

III Subpoena Duces Decum , 1/16/15, 2 pp. IHO

DOCUMENTATION ENTERED INTO RECORD February 5, 2015

H Mid-Semester Progress Report Parent

12/16/2011, 1 pg.

V CSD Report – XXXX Parent

2013-2014 3 pp.

W Conners Teacher Rating Scale 3d Edition Parent

04/292014 4 pp.

HH Mileage between XXXXand Parent

Parent’s house

Undated 2 pp.

II Bank Statements Parent

09/16/2014-01/16/2015 4 pp.

JJ XXXXPowerPoint Presentation Slides Parent

2015 19 pp.

KK iReady Assessment, Parent

2013-2014 21 pp.

8 Fountas & Pinell Benchmark Assessment District

September 17, 2014, 12pp.

9 Fountas & Pinell Benchmark Assessment District

Undated, 6 pp.

10 DRA Summary District

Undated, 2 pp.

DOCUMENTATION ENTERED INTO RECORD March 23, 2015

IV Order to Extend Compliance Date IHO

01/26/2015, 1 pg.

V Order to Extend Compliance Date IHO

02/09/2015, 1 pg.

VI Order to Extend Compliance Date IHO

03/20/2015, 1 pg.

VII Parents’ Closing Brief IHO

03/09/2015, 18 pp. (with cover)

VIII District’s Post Hearing Brief IHO

03/09/2015, 15 pp.

---

Footnotes

[1] The Parents also filed claims under Section 504 of the Rehabilitation Act of 1970. The District did not consent to allow the appointed impartial hearing officer to have jurisdiction over the Section 504 claims, without which the impartial hearing officer could not address them. The impartial hearing officer did instruct the District to inform the Parents what the District’s procedures are for Section 504 claims.

[2] All transcript page references, indicated as, e.g., “Tr. 2,” are to the transcripts from the hearing on the merits, beginning with January 22, 2015. Any references made to the transcript from the pre-hearing conference, dated December 4, 2014, will be cited as “PHC Tr. “

[4] As noted on page 3, supra, the student was assessed at a level in the middle of her second grade year. The record is unclear whether the student regressed to a at the end of her second grade year, or if this is reported in error.

[20] U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability ... and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children. See, e.g., Application of a Student Suspected of Having a Disability, Appeal No. 10-009; Application of a Student Suspected of Having a Disability, Appeal No. 09- 132.