Iroquois Central School District, Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education BEDS No. 800000052255

SED ID. No. 501743

A. and B., o/b/o A., a Child with a Disability

-against-

Findings of Fact

The Iroquois Central School District

Procedural Context

On November 18, 2016 I was appointed to hear the matter of A. and B., as parents of A., versus the Iroquois Central School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, a pre-hearing conference was convened telephonically on January 4, 2017 and continued to January 18, 2017. Additional pre-hearing conferences were held on February 10, 2017; March 10, 2017 and April 13, 2017. On this latter date, it became clear that settlement negotiations had dissolved, and that the matter would proceed on the merits. Thereafter, hearings were held on June 21, 2017; July 25, 2017; September 26, 2017 and September 27, 2017. On this last date, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended to January 25, 2018.

Specifically, the Parents assert that the School District’s educational placement, as memorialized by the May 22, 2015 and November 19, 2015 Section 504 Plans stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and are neither suitable nor appropriate for their child. Exhs. 45, 47. As a result thereof, they are seeking tuition reimbursement for the 2015-2016 school year in furtherance of a unilateral transfer to the F. School (hereinafter “F.”), a non-public school setting.

As a corollary, the Parents have defended the educational program implemented by F. and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

The School District’s Case Kristin D. testified as lead witness for the School District. Ms. D. is currently employed by the District as its Director of Instruction, Student Services and Assessment. As such, she is responsible for ensuring appropriate implementation of the District’s special education, alternative education and home/hospital instruction programs. The witness maintains dual certification in special and general elementary education as well as administrative certification. In her capacity as Director of Instruction, Student Services and Assessment, Ms. D. testified that she is familiar with A., noting that the child has been, at various times, been certified into special education or referred for Section 504 status. Tr. at 59.

A. has long been known by the CSE, having initially received pre-school speech and language therapy at age four. In 2006, the child was diagnosed with a Reading Disorder and a Disorder of Written Expression.

A. was referred to resource room and the Reading Recovery program, but was later declassified at the end of first grade. Exh. H., passim. In earlier grades, the child additionally participated in “Sonday,” an Orton-Gillingham-based program as well as Academic Intervention Services (alternatively “AIS”).

During the 2011-2012 school year, A. began receiving both 504 accommodations and AIS. The record indicates that, while A. was a sixth-grade student during the 2011-2012 school year, as per the District’s

E. testing protocol, her reading fluency fell at the fourth-grade level.^[1] Exh. 49. Although the witness believed the child had demonstrated progress with her “words read correctly” goals, she noted that the absence of sufficient data points was a concern in terms of confidence level. Tr. at 188-189. Likewise, the student’s comprehension, as measured on the E. MAZE, also fell at the fourth-grade level. Exh. 50. When normed nationally, utilizing E. measures, test scores placed A. in the 14th percentile for fluency while the student tested at the 34th percentile for comprehension, the lower limits of average. Tr. at 77-78; Exhs. 51,

52. The witness noted that the latter scores would be considered average compared to E. national norms. ^[2]

With the limited support of a 504 Plan and AIS, A.’s report card during the 2011-2012 school year reflected grades well into the 90s in all academic areas. Despite the child’s deficits in reading fluency and low average levels of comprehension, the child had successfully mastered the general education curriculum. Exh. 61. Despite this, the District continued to describe A. as a “strong student whose abilities are being hindered by her inability to complete tasks within given timeframes.” Tr. at 62; Exh. 8 at 1.

On June 8, 2012, the child was again certified as a handicapped student consistent with the requirements of the Section 504 of the Rehabilitation Act of 1973 (hereinafter “504”). Exh. 8.

Thereafter, on August 20, 2012 the CSE reconvened to address a psychological report obtained by the Parents from the F. School over the summer. Exhs. 9-11, 69. At this time the child’s New York State

English Language Assessment (hereinafter “ELA”) scores were reviewed. While A. was functioning on level for math, her ELA scores of “2” indicated that A. was performing below grade level. Tr. at 83-85.

The F. Psychological Report, conducted by Mari Jo S., Ph.D., diagnosed A. with a reading disorder, mathematics disorder and a disorder of written expression with dysgraphia. Exh. 69 at 15.

In response to the F. report, the CSE classified A. as G.. It additionally developed an IEP which included three one-hour periods of reading instruction/resource room (in a six-day cycle). A fluency goal in reading was additionally incorporated along with testing accommodations, access to a word processor for lengthy written assignments and the use of prompts to ensure accurate transcription of homework assignments.

Tr. at 90-94; Exh. 9.

On September 26, 2012 the CSE convened for a second program review. At this time, the Parent wished to incorporate A.’s dysgraphia into the IEP. In addition, the need for additional accommodations was addressed. Ms. D. testified that these included, “Ask A. to report assignments with sufficient detail so she knows what to do when she gets home. Allow ten seconds of wait time for A. to process prior to giving verbal responses. Check for understanding of directions and clarify is necessary. Provide stepstep written directions for detailed assignments. Wait time, again, allow a minimum of two minutes to ensure that assignments ate recorded accurately in her planner. A copy of class notes provided. Provide guide fill-in-the-blank notes or copy of notes if guided notes are not available. No penalty for misspelling unless the assignment is to practice spelling. Calculator for computation. Allow calculator for computation on times tasks requiring computation. Preferential seating nearest instruction and away from distraction. Provide audio version of novels and textbooks. No penalty for misspelling on in-class assignments. Spelling is expected to be correct on final drafts of writing pieces and spelling tests. And then, under assistive technology, access to word processor for lengthy writing assignments. Permit A. to select font type.”

Beyond this, an extensive list of testing accommodations was denominated within the IEP. Exh. 12 at 7.^[3] Again, Ms. D. presumed that the word bank associated with these goals was aligned with fourth grade standards. Tr. at 100-101.

By March 7, 2013, A. was functioning at a sixth-grade reading level although this was her seventh-grade year. Two reading goals were now reflected in the child’s IEP. Exh. 15 at 7. This included both a fluency goal as well as a more sophisticated comprehension goal addressing higher level thinking skills. Beyond this, the level of service was enhanced for A. No longer receiving alternating dates for reading resource room in addition to test accommodations and supplementary aides/services, the March 3, 2013 IEP now recommended additional consultant teacher push-in services in math. Tr. at 103. Finally, the witness testified that the E. scores indicated that the child’s fluency demonstrated an over-all upward trend, a trend additionally reflected a year later. Tr. at 104-108; Exhs. 53, 55. Consistent with these scores, Ms. D. testified that the child’s reading teacher, Anne Schiller, additionally referenced fluency and comprehension improvements in the IEP progress monitoring documents. Tr. at 108-110; Exh. 58. Although A.’s progress reflected vacillating improvement, the over-all trend was positive. The witness was, however, unable to determine whether the child’s improvement was statistically significant. Tr. at

107. By the end of seventh grade, the student’s report card yielded excellent grades well into the 90’s and Ms. Kendall described the student’s performance as “exemplary.” Exh. 62.

On March 7, 2013, the CSE convened and continued to recommend classification along with multiple accommodations and modifications. The child continued to perform exceptionally in all subject areas.

Nevertheless, the student’s comprehension scores as yielded on the E. MAZE scores continued to reflect a reading delay of at least one year between January 2013 and June 2013. Exh. 53.4 While the student achieved sixth grade proficiency, she was, in fact, a seventh grader about to enter eighth grade. Tr. at 195. During the 2012-2013 school year, A.’s reading fluency wavered significantly and Ms. D.

acknowledged the fact that A. had not met her reading goal. Tr. at 197; Exh. 58.

The CSE again met on January 14, 2014 and an IEP for A. reflected recommendations for both the remaining portion of the student’s eighth grade 2013-2014 school year as well as for the first semester of A.’s ninth grade year.^[5] Exh. 18. While the student’s recommendations remained the same for the latter half of the child’s eighth grade year, several changes were implemented for the first half of the ninth-grade school year. Beyond the previous resource room reading instruction and consultant teacher in math, a special class study hall (15:1;^[4] times/6 day cycle); co-taught English (12:1; four times/6 day cycle) and co-taught math classes (12:1; four times/6 day cycle) were recommended. Exh. 18 at 8.

Ms. D. indicated that the service model was additionally altered for A., reflecting her status now as a high school student with needs in the areas of ELA and math. Although resource room was terminated, the child continued to receive specialized reading instruction through the “supplemental supports” category of the IEP. Tr. at 202-203. The child’s eighth grade reading goal continued to target sixth grade proficiency. Tr. at 203. Only one goal is articulated in the child’s IEP, to wit: a reading fluency goal.

Exh. 18 at 7.

Ms. D. noted that the January 2014 service model changes reflected the fact that consultant teacher/co-teaching is not mandated by New York State regulation at the middle school level. She further noted that the absence of service end dates merely indicated that these interventions would continue until reviewed at the next Annual Review. Tr. at 118-119. Although the child was now in eighth grade, her reading level fell “between the 25th and 50th percentile of the sixth grade.” Exh. 21 at 4. Ms. D. testified that only one goal was articulated for A., a fluency goal increasing criteria to 150 wpm at seventh grade level. The witness testified that there were additional administrative amendments to the IEP including an accommodation to the Parents who had requested additional wait time for A. to process verbal responses. Tr. at122-123.

Referencing the E. progress monitoring, Ms. D. observed that the student doubled her projected rate of improvement at a seventh-grade reading level. Tr. at 124; Exh. 55 at 2. Still, District E. fluency scores for the same time frame described A. as “well below average.” Exh. 56 at 1.^[6] As previously, the child’s higher comprehension scores, placed her at the average range. Based upon these scores, the witness now affirmed that A. had met her IEP goal, calling for 150 words read correctly at the seventh-grade level. Tr. at 130; cf. Exh. 21 at 7 with Exh. 55 at 2.

Having so testified, the Student’s IEP Goals Progress Report reflected five fluency trials whose words read correctly generally fell below 137 with only one measure at 150 wrc. Exh. 59. Viewed along with

E. testing, the pattern of fluency acquisition was variable and did not demonstrate consistent achievement of reading goal criteria. Exh. 55. Strikingly, the child’s report card for A.’s eight grade 2013-2014 school year reflected English and math scores well into the 90s. Grades in additional content areas were similarly in the high 90s. Nevertheless, the child’s report card for A.’s eighth grade, 2013-2014 school year reflected ELA and math scores well into the 90s. Exh. 63. Grades in additional content areas were similarly in the high 90s, including science, social studies and Spanish.

In September 2014 Ms. D. was approached by Mrs. R. who was now requesting termination of reading instruction services. As A. had been on the honor roll throughout the year, B. did not believe the service was now necessary in A.’s ninth-grade school year. The witness did not object to the Parent’s request and, considering the student’s academic profile and performance, an amendment eliminating reading instruction was incorporated into the student’s IEP. Tr. at 136-140; Exhs. 31-33. A. continued to receive special class study hall, co-taught English and co-taught Math and the amendment appeared in the child’s

September 4, 2014 IEP. Exh. 31. Nevertheless, on cross-examination, Ms. D. admitted that A. had only mastered a seventh-grade reading goal and still trailed nearly two years behind her peers finishing eighth grade. Tr. at 182. Similarly, A.’s performance on the New York State ELA and Math exams persistently yielded “below proficient” on common core standards. Exh. 36 at 4.^[7] Tr. at 184. Nevertheless, further assessment was not pursued as the child was no longer receiving reading instruction.

On October 21, 2014 a new amendment to the student’s IEP was developed. As the reading instruction had been terminated, Ms. D. testified that it was no longer appropriate to continue A.’s fluency goals. Instead, a processing goal was developed although the fluency goal erroneously remained on the IEP. Tr. at 141-144. Exhs. 36 at 7-8; 37-38.

Nevertheless, on cross-examination, the witness acknowledged that the October 21, 2014 IEP (an amendment without a meeting) specifically noted that the child required “explicit systematic reading intervention” and “. . . special education instruction to improve fluency skills.” Tr. at 177; Exh. 36 at 6. Although a ninth-grade student, the document reports that A. is “currently reading between the 25th and 50th percentile of the sixth-grade reading level.” Ibid. at 5. Having thus testified, Ms. D. indicated that this was incorrect information. Tr. at 178.

On December 8, 2014 an Annual Review was held. Exh. 42. At this time, the reading instruction and fluency goals were terminated for the remainder of the ninth-grade school year. Instead, a writing goal was now incorporated. Significantly, co-taught Math would be terminated at the end of the 2014-2015 school year while the Co-taught English and special class- study hall would be retained for the first half of A.’s tenth grade school year. Only a writing goal remained along with a panoply of test accommodations and instructional modifications. Finally, referencing the IEP progress report for 20142015 Ms. D. noted that the student had not met criteria as the number of test trials were limited. Tr. at 152-154; Exh. 60. Once again, however, the child’s report card reflected high grades in the 90s with an unmodified ninth grade curriculum. Exh. 64.

The Summary notes that, “Mr. and Mrs. R. are very happy with A.’s success at the HS. She has done wonderfully. She has had wonderful teachers.” Exh. 42 at 1. In deference to the Parents, the District delayed its triennial psychological assessment as the Parents indicate they would be completing a reevaluation at the F. School over the summer. In furtherance thereof, the CSE indicated it would conduct a program review upon receipt of the new information to determine the appropriateness of decertification from special education along with the development of a Section 504 plan. To this end, a Prior Written Notice was issued. Exh. 43.

On June 8, 2015, the CSE recommended declassification of the student and the development of a 504 plan, based upon the child’s dyslexia, for A.’s tenth-grade 2015-2016 school year. Tr. at 150, 175; Exhs. 44, 46, M. Although A. had consistently performed below average, as evidenced by the E. scores,^[8] her report cards and in-class performance were stellar. Ms. D. noted that the 504 plan specifically included both test and instructional modifications while the Parents consented to the termination of special education services and goals. Tr. at 161; Exh. 44. Nevertheless, Ms. D. acknowledged that the psychological report was performed and issued following the A.’s declassification. The District did not perform a psychological evaluation until September 2015, nor was it issued until October 22, 2015. Ms.

D. acknowledged, moreover, that the September 2015 testing performed by Ms. J. continued to yield the same 14th percentile fluency scores as had been evident as early as 2011. Cf. Exhs. 51, 71. Indeed, these scores were essentially consistent with those obtained by F. as part of the student’s admissions assessment. Exh. 6.^[9] The witness noted that A.’s tests scores fell within the average range on the Gray Oral Reading Tests, Fifth Edition (hereinafter referenced as the “M.-5”) and, along with other measures of the student’s performance, she opined that A. did not require reclassification into special education. Ms. D. agreed that the student’s profile included several issues including fluency and working memory deficits. However, these needs had been addressed within the 504 plan. Tr. at 219; Exh. 7.

As the 2015-2016 commenced, the Parents began to voice “real concerns” regarding the implementation of their daughter’s 504 plan. Tr. at 167. On November 19, 2015, the 504 Committee met. At this time, the Parents voiced distress about inadequate test notice, the failure to provide guided notes and parentteacher communication. Exh. 47. Beyond this, the Rs. opined that the “teachers did not seem to have an understanding of A.’s disability, so A. was feeling frustrated.” Tr. at 169. The Parents noted that A. spent two to three hours every night working on homework and had become very anxious about in-class performance and test-taking as she was not being given enough time to prepare. Tr. at 212. Although given the opportunity, B. did not request an IEP or restoration of her reading program. Tr. at 226. In addition to considering the Parents’ concerns, a psychological report by District psychologist Melissa J. was reviewed. The 504 Committee concluded that it would be beneficial for the Parents to meet with the student’s teachers to discuss implementation of the child’s educational needs and her 504 plan. Ms. D. testified that the Parents did not express a desire for re-classification into special education, nor did they wish additional reading instruction or services. Rather they confined their concerns to the implementation of the 504 plan with specific attention to advanced notice. Tr. at 170-171.

Summarizing the student’s progress during the first half of J.R’s tenth grade, the record indicates that the student’s scores were consistently in the 90s. With the exception of Living Environment yielding the lowest grade of 85, J.R was an “outstanding” student. Tr. at 156. Exhs. 66, 68. The witness described A. as a bright, college-bound student who would earn a Regent’s diploma. Nevertheless, on December 17, 2017, the Parents served a Ten-Day Notice upon the District and A. was enrolled at F.. Included within their letter, the Parents provided an updated psychological report from F.. Exhs. 1, 71.

Melissa J. additionally testified on behalf of the District. Ms. J. holds certification as a school psychologist (grades five to eight) and has been employed in this capacity within District for approximately ten years. As the District’s psychologist, the witness is responsible for consultation, intervention, assessments, chairing CSE and 504 meetings and counseling families. Ms. J. described A. as a H. student whose disability presented in terms of reading fluency. Tr. at 249.

Referencing a Psycho-Educational Evaluation performed by F., the witness noted that the child was identified as a gifted student with dyslexia. Tr. at 252. In addition to a reading disorder, A. was diagnosed with a math disorder and a disorder of written expression. Tr. at 253; Exh. 69 at 12, 15. Referencing the

L. III performed by F. in 2012, Ms. J. noted that scores below the 10th percentile would generally indicate a severe deficit. In furtherance thereof, some scores were at or near the 10th percentile while others were much higher. In either event, Ms. J. testified that the child’s IEP of August 20, 2012 was responsive to the issues noted in the F. report. Tr. at 26; Exh. 9. The student continued to receive supplemental reading support and a reading goal was continued on the student’s February 2014 IEP. The witness observed that A.’s deficits in reading fluency were related to her slower processing abilities. She did not believe, however, that A. required a comprehension goal. In furtherance thereof, the District’s reading program included decoding exercises, repetition, and the use of various empirical reading programs. Tr. at 263, 266-267. Nevertheless, the E. data for eighth grade continued to reflect a child whose level of skill remained below average. Tr. at 414; Exh. 56. Having thus testified, the witness noted that this was a timed test and, therefore, tapped into an area of A.’s weakness. Tr. at 414-415, 451.

On October 21, 2014, the child’s IEP was amended without a formal convene. Exh. 36. The document again noted that “A. requires explicit, systematic, intensive reading instruction,” and continued to recommend special education instruction to address deficits in reading fluency. Exh. 36 at 6. Although

A. was a ninth grader, her reading scores remained between the 25th and 50th percentile at the sixth-grade level. Tr. at 401; Exh. 36 at 5. On cross-examination, Ms. J. acknowledged that A. was still not reading at grade level, but believed the gap had narrowed significantly. Similarly, she agreed that the student’s ELA scores consistently fell below proficiency, but was not concerned about this. Tr. at 237; Exh. 36 at

4. 10 Ultimately, the psychologist opined that the student’s fluency deficits had been remediated prior to developing the 504 plan. Tr. at 400. In December 8, 2014, the witness chaired a CSE convene for A. Exh. 41. While the student continued to receive a range of accommodations and instructional modifications along with special education study hall, co-taught ELA and co-taught math, she no longer received special reading instruction. Nevertheless, the supplementary services reflected a “common theme,” which would provide the student with additional time to process information and focus. The IEP now reflected a singular reading goal which the witness suggested would “likely [be addressed] in conjunction of her study hall and possibly her co-taught class.” Tr. at 376-377. The minutes of the December 8, 2014 meeting indicate that the Parents were very pleased with A.’s success in school and a program review addressing possible decertification from special education was 10 An extensive discussion regarding the meaning of ELA scores proceeded. In the absence of score ranges, one cannot conclude how far below proficiency a student has scored. Tr. at 404-413. scheduled for the end of the school year. Exh. 42. While some discussion was raised about advanced placement classes and decertification from special education, Ms. J.’s testimony is unclear as to how this was resolved or the impact upon the Parents. Similarly, there was a discussion regarding the District’s application for A.’s SAT and ACT test accommodations. Ultimately, Ms. J. testified that the decision to potentially decertify the student was a united consensus. Tr. at 380. 11

On May 22, 2015, the CSE met to review A.’s educational programming for the 2015-2016 school year. Ms. J. testified that “everybody was very pleased and excited for A.’s declassification.” Indeed, B. gave “full support” to the proposed declassification. Tr. at 382. Teacher reports indicated that the student was highly successful and did not evidence any needs in terms of skill development or goals. Although the Parent had not yet obtained a psychological report, Ms. J. testified that she would have conducted an assessment had she been asked. In any event, based upon the input of the child’s teachers, counselors, grades and overall academic performance, the witness testified that everyone present at the May 22, 2015 meeting felt comfortable with the recommendation. Tr. at 384-385; 386. Thereafter, on this same day, a 504 plan was developed. Exh. 44. The witness noted that the specifics of the 504 plan were essentially extricated from the student’s IEP. Tr. at 388.

In September 2015, at the Parents’ request, Ms. J. conducted a Psycho-Educational Evaluation of A., assessing her with the K. – fourth Edition (hereinafter referenced as the “WISC-IV”), the WoodcockJohnson 12 and the M.. 13 On all untimed tests the child’s scores yielded solidly average measures of intelligence with borderline scores in working memory. Tr. at 272-273; Exh. 71. Nevertheless, Ms. J. opined that the borderline working memory score reflected an “isolated digit span” sub-test. Timed testing in the areas of reading and math fluency yielded low average scores. The clinician testified that these scores were consistent with those obtained in 2012 from F.. Exh. 69, 71. Additional tests of reading ability were obtained through the M., all of which yielded average scores unless time constraints were imposed.

11 Although the student was due for a psychological evaluation, the Parents noted that they would prefer to obtain a psychological evaluation from F. and would do so over the summer. Exh. 42. 12

L. Tests of Achievement – Third Edition 13 As the Parents indicated that the F. testing had not been completed at this time, Ms. J. offered to complete an assessment. The Parents agreed to the District’s evaluation. Although Ms. J. initially opined that the child’s fluency did not impact her ability to understand what she was reading, she later testified that, “. . . the purpose of remediating fluency is so that she can gain comprehension of material and be successful academically . . .” Tr. at 358, 419. Ms. J. did not dispute the significance of the child’s depressed scores in Broad Reading, reading fluency or working memory. She acknowledged the various data points which reflected below average E. scores, below proficiency ELA results and longstanding comprehension levels at least one year and frequently two years below grade level. Tr. at 427.^[14] Rather, Ms. J. believed these issues could be addressed within the classroom through the multiple accommodations in her 504 plan; she opined that special education instruction was not the only way to remediate the student’s reading deficits in fluency and there was no need for reclassification. Tr. at 373, 425, 428.

In fact, the witness asserted that test scores could not be assessed in isolation. Given the student’s high achievement in class, her average scores on all untimed subtests and her average comprehension scores, Ms. J. summarized her testimony by asserting that the September 2015 test results confirmed the appropriateness of the District’s decision to decertify A. Tr. at 419.

On November 19, 2015 the 504 Committee convened to discuss the results of Ms. J.’s psychological assessment. Exh. 47. Once again, based upon a global assessment of the child’s performance, the Committee recommended A.’s 504 plan remain in place. It did, however, continue to recognize A.’s dyslexia disability. Tr. at 399. At this time, the Parents expressed concerns about the implementation of the child’s 504 plan, noting that A. was frustrated by the lack of oral instructions and guided notes. In addition, A. was anxious about inadequate notice of tests and assignments. Tr. at 393. Ms. J. testified that she was not personally aware of A.’s I. as this was not always, if ever, seen in school. Tr. at 446. A discussion ensued about the child’s processing/fluency deficits and how this constituted an “invisible disability.” Tr. at 394. The witness testified, “Mrs. R. had expressed concern regarding the teachers not understanding A.’s previous years of struggle in school, understanding her disability, she had felt that A. – perhaps we needed to clarify the amount of days – they were giving her days in advance, but it perhaps wasn’t enough days in advance, so let’s clarify that so we all understand what her – what her needs are for time.” Tr. at 446.

The meeting minutes further referenced the Parents’ concerns about inadequate communication and their belief that school personnel did not “have an understanding of her disability and know what happens behind the scenes . . .” in terms of time spent on homework and their daughter’s escalating levels of frustration. The Parents further reported that A. was struggling to advocate for herself. In response, the child’s counselor reassured the Parents she was available to assist the child throughout the day. Tr. at 393-396; Exh. 48. Again, there was no Parental request, however, to reclassify A. Tr. at 392-395.

In December 2015, the student again took the M. once more as part of her admissions testing at F.. Exh.

S. Although the witness acknowledged that the A.’s scores were lower on this subsequent round of testing, she felt the difference was marginal, attributing the variation to idiosyncratic testing factors. Tr. at 363-

364. Given the range of normal score fluctuations, she believed the most reliable reading score was the Oral Reading Index of the M., a score which globally placed A. in the average range. Tr. at 370-373.

Sharon N. additionally testified on behalf of the District where she has been employed for the last two and a half years as a special education teacher. Ms. N. is certified as a special education teacher (K-12). From January 2015 through June 2015, Ms. N. taught both an integrated ninth grade ELA class as well as a special education study hall to which A. was assigned. Tr. at 298-299. Her familiarity with A. is limited to five months during the 2014-2015 school year. Although she had reviewed the child’s prior IEPs, she had not seen the 2012 F. evaluation nor had she reviewed the child’s E. scores. She was, however, aware of A.’s below grade level performance on the New York State ELAs. Tr. at 316-317. She was not involved in the decision to remove A.’s supplemental reading instruction 15 nor has she ever offered this service to the child.

With respect to her responsibilities as the special education co-teacher, the witness observed that general educator John Lysack presented most of the curriculum while Ms. N. reviewed the material, facilitated the reading and presented supplementary activities. It was additionally her responsibility to ensure that A.’s accommodations were implemented pursuant to her IEP. Exh. 41. During A.’s ninth grade year,

15

Cf Exh. 36 and Exh. 41. the student was provided with the standard New York State ninth grade curriculum. Ms. N. testified that the student required additional time for tests and assignments as well as environmental modifications in terms of seating. However, she was not receiving specific reading instruction at this time. Although the witness testified that she did not recall any specifics about A.’s ability to read, she opined that reading deficits would likely have an impact upon the student’s final grade. At the end of the 2014-2015 school year, A.’s final grade was a 97, one of the highest grades in the class. Tr. at 305-306; Exh. 67.

In sum, Ms. N. did not recall any particular need for reading instruction at this time, although she was aware that A. had received it in middle school. She noted, however, that reading of the play, Romeo and Juliette, was conducted “in class together as a group.” Tr. at 308. Comprehension was then assessed on a computer program, Castle Learning. The witness testified that A. did not “really request extra help or explanation” and was an independent worker, both in class and in her special education study hall. Tr. at 310-311.

On May 22, 2015 Ms. N. participated in a subcommittee meeting of the CSE. Based upon the student’s grades, her work ethic and ability to self-advocate, it was the CSE’s consensus to declassify the student. The witness testified that this was a brief meeting and she did not recall any objections on the part of the Parents. Tr. at 312-313. Ms. N. testified that she did not see any basis for offering the child special education services and/or specialized reading instruction. Ultimately, a 504 plan was recommended for

A. although the witness acknowledged that a student with good grades may, nevertheless, still require classification and services. Tr. at 318.

Rebecca P. additionally testified on behalf of the School District where she has been employed for the past ten years. Ms. P. is a certified as a secondary English teacher grades 7 through 12; she is not a special educator. During the 2015-2016 school year, Ms. P. served as A.’s tenth grade English teacher. She testified that, prior to working with the student, she reviewed A.’s 504 plans, but did not review anything else. Tr. at 338; Exhs. 44, 47. As such, she was familiar with A.’s need for various accommodations and instructional modifications based upon the student’s dyslexia.

The witness described a small general education class in which only 16 students were enrolled. Other than A., she did not believe there were other students with IEPs or 504 plans. Tr. at 326-327. All students were presented with the standard tenth grade curriculum without modifications. Ms. P. testified that she was familiar with A.’s accommodations and, consequently, offered her as much time as she needed for assignments. In furtherance thereof, she observed that neither the student nor the Parents ever raised concerns regarding the implementation of the 504 plan, although she checked in with A. almost daily. She did not observe any difficulties completing assignments, most of which were finished in class. Similarly, she testified that the student’s work product and written assignments were completed satisfactorily. As a result, she opined that A. was reading appropriately as she would not have been able to otherwise complete the assignments acceptably. Nevertheless, she had not heard A. read aloud. Tr. at 338.

At the end of the student’s first marking period for the 2015-2016 school year, the student’s ELA grade was a 98, scoring in the top three students of the class. Tr. at 333; Exh. 65. A subsequent report card indicates a similar grade of 97. Exh. 69. Based upon the student’s academic performance, Ms. P. testified that she saw no need for special education supports or reading instruction. Tr. at 334-335. The witness noted that she had spoken with and emailed the Parents occasionally for the purpose of ensuring that A.’s academic needs were being met. The Parents did not indicate any dissatisfaction with her class or A.’s academic performance. Indeed, Ms. P. testified that she was totally unaware of any issues relating to the implementation of A.’s 504 plan. Tr. at 340-342. In fact, A. was functioning at a tenth-grade level in English and the witness anticipated that A. would receive a Regent’s diploma and attend college.

The Parents’ Case

Robin O. testified as lead witness on behalf of the Parents. Mr. O. has been employed by F. for more than 15 years, having served as the Chairperson of the mathematics department for the bulk of this time. He has been Head of the Upper School for approximately one year. As Head of the Upper School, Mr. O. is responsible for educational programming, decisions regarding the admissions process, faculty management, administration and discipline. Tr. at 473. The witness noted that F. is an independent college preparatory school, founded in 1926, serving students with language-based learning deficits. The school is accredited by the New York State Association of Independent Schools as well as the International Multisensory Language Educational Council (hereinafter “IMSLEC”). Approximately 90 students are enrolled in its high school; there are approximately 50 teachers on staff. Tr. at 480. Class size is capped at seven, although reconstructive language classes are smaller. Although teachers do not require certification, they all possess a Bachelor’s degree at a minimum. More importantly, Mr. O. noted that ongoing and intensive training in the reconstructive language protocol is required of all personnel. Assistive technology is available to all students, including Text to Speech and Speech to Text software. Tr. at 491. Mr. O. testified that he could not think of any F. students who were not disabled, but did not know whether all had been classified by their respective Committees on special Education. Tr. at 499, 502. Finally, there is a guidance counselor on staff.

The witness noted that the admissions protocol reflected a day long process involving several interviews and testing procedures once an application is approved. He described a pupil profile at F. in which students are intellectually intact, but demonstrate reading and writing skills which are significantly below grade. Tr. at 479. As part of F.’s remedial interventions, small classes are offered along with content area tutorials and supervised study halls. Significantly, all students take a daily proprietary remedial reading course entitled Reconstructive Language. The witness was unsure if the student had availed herself of F.’s structured study hall nor had he observed the student utilizing any assistive technology. Tr. at 507, 510.

Mr. O. noted that A.’s grade point average placed her at the top half of her class, falling within a 3.6 to 3.7 window. Tr. at 516. As per the student’s report card during the 2016-2017 school year, A. was generally described as an “exceptional” or “above-average” student. Exh. R at 2. As a result, he believed

F. had been a good fit for the student. Exh. R. In furtherance thereof, he noted that A. was, “a selfconfident young woman. She has done well academically. She has gotten involved in activities. She has just been a positive influence on the school as a result.” Tr. at 496.

Kathleen Q. additionally testified on behalf of the Parents. She is familiar with A., having served as the student’s teacher. Ms. Q. is the chairperson of the reconstructive language department where she has been employed for the past 28 years. She holds a Master’s degree in language and learning; she has participated in various conferences and training sessions throughout the years in the areas of dyslexia. Ms. Q. is presently on the Board of Directors of INSLEC, an organization which seeks to standardize instruction for H. children. Her responsibilities include teacher training, supervision and student placement. Referencing F., the witness noted that the school’s foundation is based upon the provision of small classes and reading intervention through the reconstructive language protocol. Daily half hour tutorials additionally offer the opportunity for individualized attention. Other educational supports offered by F. include the use of assistive technology in the form of laptop computers, text to speech/speech to text programs, compositional writing programs, science and math applications and robotics. Tr. at 541. The use of technology is tailored to the needs of the child. Tr. at 568.

While classes are usually no more than seven children, class size in reconstructive language is typically smaller. Tr. at 528-529, 481. At a minimum, all instructional staff receive 30 hours of reconstructive language training and must pass both written and oral tests in this methodology so that they may continue the technique within their own classrooms.

Ms. Q. provided an overview of the reconstructive language methodology noting that it is a multisensory intervention which is related to the Orton-Gillingham protocol. As such, it is a phonetic approach to reading which includes phonics, spelling, vocabulary and oral reading for fluency and comprehension. Tr. at 530. Specifically, the witness described a technique in which language is broken down into morphological components. Fluency, automaticity, alphabetic knowledge and comprehension strategies are key components of the reconstructive language technique.

As part of the protocol, word cards with various cues and rules must be memorized and then applied to text. Students are then drilled on this material until automaticity is acquired. In this manner, Ms. Q. opined that active working memory is developed in a multisensory format. In addition, the cards facilitate immediate letter recognition which translates into fluency in both reading and in spelling. Tr. at 535. Comprehension and vocabulary are then developed using morphological cues such as prefixes, roots and suffixes. Each student develops their own card deck which must be memorized although they can be used in other content areas. Ms. Q. testified that while rote memorization is initially important, “Rote memorization does not improve reading skills. You need to couple it with application, to spelling, to the rules of pronunciation and to active oral reading and connected text and in silent reading, so that’s only one piece . . .” Tr. at 564. Finally, because students may regress when not actively engaged in reading instruction, the witness testified that the card technique is repeated each year and across all content area classes. Tr. at 560. In sum, Ms. Q. testified that the student had been very successful at F. where an improvement in her reading skills had demonstrated an impact upon the child’s performance. Tr. at 542.

On cross-examination, the witness observed that the student finished her first semester at F. with only two B+ grades, all others being As. The report card notes, “A. was able to recall all of the phonics csrds taught this year and earned an impressive 100 on her final card test. As a result of her hard work throughout the semester, she was able to earn a 100 on her final roots and spelling tests.” Exh. U at 4. During her second year at F., the student continued to receive high grades in all subjects. Exh. R. Reviewing A.’s performance throughout the year, Ms. Q. acknowledged that the report primarily indicated grades falling within the “exceptional” and “above-average” categories.

A second assessment, based upon repeated measures on the M., gave an additional view of A.’s improvement during her tenure at F.. Exh. S. Ms. Q. testified that the child had made progress with accuracy and comprehension, even if the rate of reading had declined. In furtherance thereof, she noted that if words are read incorrectly, comprehension is affected. As in A.’s case, additional time can be provided through her accommodations. Thus, the witness noted that F. purposely tried to slow some students down in order to improve their reading accuracy. Tr. at 574. Nevertheless, she added that the

M. is only one piece of the puzzle. Having so testified, Ms. Q. acknowledged on cross-examination that she was unaware of the student’s consistently higher September 2015 M. scores obtained by the District’s psychologist. Tr. at 575.

Mari Jo S. testified on behalf of the Parents. She is the Director of Research and Assessment at F.. Dr.

S. holds a Ph.D. in developmental psychology and has extensive experience in the field of dyslexia and assessment. She additionally holds a Master’s degree in education and teaches 11th grade English at F. where she has been employed since 2005. Tr. at 584-587. She does not, however, hold any professional licenses. Tr. at 634.

In July 2012, Dr. S. assessed A. Exh. 69. In her discussion, she commenced her testimony with her report of the WISC. She noted that the WISC was compromised of four sub-tests which together yielded A.’s Full-Scale IQ. While A.’s scored in the high average to average range in measures of Perceptual Reasoning, Verbal Comprehension and Working Memory, the child’s processing speed was borderline. In furtherance thereof, she noted that the “field has identified” the General Ability Index, a measure which filters out the child’s memory and processing issues to obtain a more accurate indication of verbal comprehension and perceptual reasoning abilities when not compromised by deficits in working memory and processing. Tr. at 589-590; Exh. 69 at 4. When testing assessment was performed in this manner, A.’s scores yielded superior results. In contrast, when measures of working memory and processing speed were not isolated, the student’s scores fell at low average range. The witness concluded that, “She is a girl with superior cognitive abilities, working memory and processing speed lower that would make me think I want to look further for a learning disability.” Tr. at 592.

Reviewing scores obtained on the WJ-III, the student continued to score solidly within many clusters and content areas, but demonstrated clear deficits in the area of Broad Reading. Exh. 69, passim. While the letter-word identification fell at the 13th percentile, her Broad Reading score was somewhat higher, falling at the 20th percentile, a score bolstered by higher achievement in the area of passage comprehension. Tr. at 594-595. A second cluster score, Phoning and Graphing, reiterated A.’s deficits in phonetic decoding and spelling, yielding scores at the 11th percentile.^[16] Finally, the child’s Broad Written Language scores evidenced a similar pattern with an over-all percentile of 11, reflecting scores as low as the 11th and 14th percentiles for spelling and writing fluency respectively. Once again, in an untimed writing sample format, the student’s scores were significantly higher, falling at the 67th percentile. Tr. at 597. Given A.’s cognitive abilities and grade expectations, the witness opined that A.’s phonetic decoding weakness reflected a core deficit consistent with dyslexia. Tr. at 596.

Other indications of dyslexia were obtained on the Test of Word Reading Efficiency (hereinafter referenced as the “TOWRE”). Once again, the student struggled with reading automaticity and phonics decoding, yielding scores below the 25th percentile. Exh. 69 at 9. On the M., a timed assessment, A.’s rate, accuracy and fluency scores were extremely weak (falling bellowed the 5th percentile). Counterbalancing this, Dr. S. testified that A.’s stronger conceptual and comprehension skills were enabling the child to “help fill in the blanks even though she may be missing words and reading slowly with her fluency.” Tr. at 600-601. Finally, measures yielded on the Rapid Automatized Naming and Rapid Alternating Stimulus Test, a speeded word retrieval test, indicated that the student’s phonological processing scores were again discrepant from her cognitive abilities. Tr. at 602-603. In sum, Dr. S. testified that when filtering out the processing speed factor in any cognitive task, the student scored significantly higher, a factor which underscored the presence of a reading disability and dyslexia. Tr. at 606.

Dr. S. concluded that, “A. is really struggling with reading, with phonetics, with timed reading, written expression and then we get down to math and she is primarily having weaknesses that are often seen with students who are H. in time math fluency, knowing math facts off the top of her head, being able to use that working memory for math facts . . .” Tr. at 607. Based upon her testing, she diagnosed A. with a reading disorder, disorder of written expression with dysgraphia and a mathematics disorder. In furtherance thereof, she denominated a number of instructional recommendations for the student, including an intensive multi-sensory, phonetically-based reading program. Tr. at 608-615; Exh. 69 at 15.

In December 2015, the witness again evaluated A. At this time, the student demonstrated good sight reading skills on the IOTA Word List Test, but read laboriously when given a phonetic decoding test. Tr. at 616-618. The witness concluded that, “A lot of her reading is by sight, a lot of her effective reading is by sight and she’s trying to use syllabication strategies that she has learned and sometimes they’re effective, but they’re very slow and effortful for her and she still – and she came out at the 13th percentile for that.” Tr. at 619. A re-test on the M.- 5th Edition indicated that the student remained H. and was sacrificing accuracy for speed. Tr. at 621. Likewise, scores yielded on the Morrison-McCall Spelling Test confirmed that A. was still struggling with spelling. Although the student scored at the 87th percentile for spontaneous writing on the Test of Written Language, Dr. S. testified that, as a whole, the admissions battery indicated that A. continued to evidence weaknesses associated with dyslexia. Thus, she continued to require the special interventions she had described in her 2012 report.

Referencing the child’s progress since her admission to F., Dr. S. observed that A. was improving, albeit slowly. Tr. at 624-625; Exh. S. Reviewing the child’s M. scores, she opined that the student was “modulating” her reading speed, availing herself of comprehension techniques at the expense of speed. Tr. at 626. Although the child’s fluency appeared unchanged, Dr. S. noted that the score was simply a combination of rate and accuracy. Thus, if accuracy improved at the expense of speed, the average score would not reflect a change. Tr. at 627. Finally, the witness pointed out that the child’s comprehension scores had clearly improved by spring 2017. Exh. S at 2.

The witness described the reconstructive language program as a multi-sensory, phonetically-based, intensive remedial reading program focusing on vocabulary, morphology, fluency, spelling and comprehension. It is most appropriate for adolescents and adults, rather than younger students. Tr. at

629. It is based, in part, on the tenets of the Orton-Gillingham methodology, but is proprietary and therefore, limited to F.. She opined that reconstructive language was an appropriate protocol for A. and that the student had made progress with this technique. Tr. at 630-631. On cross-examination, referencing her 2012 Psycho-Educational Evaluation, Dr. S. acknowledged that the student’s full-scale IQ was in the average range and that her General Ability Index fell in the superior range. Exh. 69. Similarly, while there were some weaknesses in the student’s working memory and reading fluency, nevertheless, both scores fell into the average range. Additional scores in the average or low average range included letter-word identification, spelling, passage comprehension and writing fluency. Tr. at 664-666. Spelling, letter-word identification and writing fluency were specifically designated as low average.

Again, on the TOWRE, Dr. S. acknowledged that A.’s scores continued within the low average to average range. Likewise, scores on the Rapid Automatic Naming and Rapid Alternating Stimulus Tests fell within the average range. Indeed, even the three-set letter sub-test was only one point way from the average range. Tr. at 673-674. A.’s rate of fluency on the M., however, was “fairly low,” noting that the child demonstrated difficulty with her ability to decode and recognize sight words. Tr. at 670. She added that accuracy scores obtained on the M. and L. were not comparable due to the timing conditions and the manner in which comprehension was assessed.^[17] Tr. at 672. Ultimately, although many of A.’s test scores fell within the average to low average range, Dr. S.’s diagnosis of dyslexia was derived, in part, by comparing her yielded scores with measures of A.’s intellectual ability. Tr. at 676. She agreed that, “. . . the student did have some weaknesses in processing speed, reading, decoding, spelling, writing fluency, but other than that, all her academic skills were in the average range.” Tr. at 680.

Comparing Ms. J.’s September 2015 testing with her own 2012 testing, the witness agreed that certain scores on the WISC-IV (i.e. processing speed) had appeared to improve while the student’s working memory was now significantly lower. Dr. S. noted that she was unaware of any data indicating that processing speed could improve as a result of intervention. Rather, Dr. S. opined that many of the skills tested on the WISC-IV were based upon automaticity and, therefore, performance could vary from day to day.

Having so testified, the witness noted that fluency clearly remained an issue for A. in 2015. Tr. at 689. When comparing her own administration of the M.-4 (2012) and the District’s M.-5 (2015), the witness acknowledged that some scores had appeared to improve, although the amount of improvement could not be ascertained as the standard scores continued to fall within the same standard deviation. Tr. at 692. Moreover, the scores would have to be appreciated within the confidence levels given. Thus, within a 95% confidence level, A.’s standard score of 81 on spelling could have fallen between 74 and 89. Exh. 69 at 8.

Further comparing the District’s M.-5 testing in September 2015 with F.’s M.-5 testing in December 2015, the witness acknowledged that she did not recall which version of the M.-5 she had administered. Therefore, she may have retested the student on the same test instrument, a protocol which would bear on the test’s reliability and validity. Tr. at 699. In reviewing the standard scores yielded by Ms. J.’s 2015 testing with her own testing in 2015, Dr. S. agreed that the child’s standard scores were fairly similar, many falling in the average range. Tr. at 700; Exhs. 6, 71.

In March 2016, the student was again administered a different form of the M.-5. The witness noted at this time that A.’s scores in accuracy, fluency and comprehension yielded similar results as those obtained in December 2015. Tr. at 700-701. Likewise, M.-5 testing performed a year later in April 2017 yielded similar results which, when compared to the District’s testing in September 2015 and F.’s testing in March 2016 remained consistent. Tr. at 704; Exhs. 6, 71. In contrast, however, a review of the child’s percentile scores placed her significantly below her peers, while progress was only noted in the areas of accuracy and comprehension between December 2015 and April 2017. Tr. at 717, 721; Exh. S at 2. The witness explained, however, that fluency scores did not change because this score comprises both rate and accuracy. As the student has been encouraged to read more slowly, the rate has decreased while the accuracy has improved. Lastly, while four forms of the M. had been administered to the student from September 2015 through April 2017, the witness testified that it was unlikely a practice effect had materialized as too much time had transpired between administrations. Moreover, if any practice effect had occurred, it would most likely be present in the comprehension portion of the test rather than with fluency or accuracy. Tr. at 731.

Finally, although the student’s standard scores generally fell within the average range, Dr. S. opined that the point of comparison in assessing the extent of A.’s disability should be her Cognitive Index, rather than comparisons with other students at the 50th percentile. Tr. at 706. She testified, “I think that it’s unfair to make the only comparison the average performing student, the student that’s performing at the 50th percentile and within that average range and that it’s unfair to A. and to other students whose cognitive abilities are higher than that and it’s within them that the – the discrepancy between what they’re capable of doing and their intellectual abilities . . .” Tr. at 709. Thus, a more global approach was required in terms of assessing a student’s cognitive ability. This would include . . . “the quality of responses from each of the subtests . . . information that comes from previous documentation, previous testing, historical information, parents . . . but in terms of looking at those scores across the four components, I’ll give the whole thing and then you have the scores, verbal comprehension, perceptual reasoning, working memory, processing speed. Then you’ve got the full-scale, General Ability Index and cognitive proficiency. . .” Tr. at 734-735. Thus, a high full-scale IQ is capable of masking the extent of weaknesses in processing speed or the variability in working memory. When filtering out processing speed and working memory, Dr. S. observed a significant discrepancy between the child’s abilities and her achievement. Tr. at 736.

B. additionally testified as A.’s mother. She provided a brief educational history of A., noting that her daughter began to struggle in school as early as kindergarten. For years, A. was alternately classified, referred for 504 accommodations or offered AIS. In seventh grade, A. was diagnosed with dyslexia and dysgraphia and, as a result of these diagnoses, the child was again referred to the CSE. At this time, A. received Academic Intervention Services (hereinafter referred to “AIS”), and additional special education reading and math instruction. Tr. at 739. These supports continued during the remainder of the seventh grade 2012-2013 school year as well as during the eighth grade 2013-2014 school year.

In December 2014, the Parent attended A.’s annual review for the upcoming ninth grade school year (2014-2015). At this time, the witness testified that Janice Cheney, A.’s guidance counselor raised the issue of declassification. Tr. at 740. Uncertain as to the consequences of this, it was explained that certain content area classes in the high school- English, math and various advanced placement courses- were not provided as co-taught, integrated classes. The Parents were advised that those classes which did offer the co-taught format were basic math and English classes which “would be holding A. back” as they were less challenging courses for slower students. Tr. at 742, 766-768. As the CSE continued, the witness testified that the issue of special education support within the classroom and declassification were discussed at great length. Ultimately, the Parents felt declassification was the option which would keep

A. on a college-bound track and enable her to take advanced placement courses. Consequently, they agreed with the District’s plan. Tr. at 741-743. The minutes of the December 8, 2014 are silent with regard to A.’s course availability and classification. Exh. 42. In May 2015, A. was decertified from special education. Exh. 44. Likewise, the minutes of this proceeding are silent with regard to academic options for special education students. Exh. 44. No formal evaluation was conducted prior to this action and, to the Parents’ knowledge, no declassification support services were offered during the 2015-2016 school year. In fact, the Parent testified that those assessments which were discussed at the December 2014 and May 2015 CSEs were addressed within the context of SAT test accommodations, rather than decertification. Tr. at 744, 745. In September 2015, Ms. J. proceeded to conduct a psycho-educational evaluation, with the Parents’ consent, as the Rs. had still not obtained the psycho-educational assessment at F..

A. began her tenth-grade year within District during the 2015-2016 school year, the student’s first year without an IEP since seventh grade. The Parent testified, “. . . It was probably the darkest point in her life and in our – in my husband and my life. She – she became a young lady that we didn’t know. She became a shell of herself. She – it was not good . . .” Tr. at 747. Although the 504 plan had extensive accommodations, the witness opined that the plan was not being implemented. Tr. at 748. Specifically, she testified that notice provisions, preferential seating and guided notes were not being offered appropriately. In one occurrence, the student’s desire for clarification was met by a referral to the teacher’s web site.

As previously, the Parent reached out to Ms. Albrechincinski, by telephone and email, to express her concerns about the child’s needs. Tr. at 749-750; Exh. CCC. In addition, B. testified that she had several discussions with the District’s superintendent regarding the District’s failure to implement A.’s 504 accommodations. In particular, B. believed there was a lack of communication between special education and general education personnel, a gap which led to a general lack of familiarity with her daughter’s educational needs. Tr. at 751. She noted, moreover, that there was inconsistency across teaching personnel in terms of which accommodations were provided and when. Tr. at 783-784.

Nevertheless, although A.’s grades were strong, B. noted that both she and her husband would re-teach the materials covered during the day, on a daily basis, to ensure A.’s comprehension. B. would then prepare flash cards, based upon the textbooks, and begin drilling her daughter nightly. Tr. at 786. In all,

B. believed her daughter was spending two to three hours per night on homework. Tr. at 786; Exh. 48. During this time, A.’s grades were additionally bolstered by non-academic extra credit activities.^[18] Tr. at 789-790. On occasion, the Parent additionally noted that students would be provided with copies of an upcoming test at the support study halls. Beyond this, B. testified that A.’s worked incredibly hard, giving up week-ends to ensure mastery of educational materials. Tr. at 755-757.

As the semester continued, B. testified that her daughter began to develop I./panic attacks and, on one occasion, began hyperventilating. The Parent testified that her daughter would cry herself to sleep, leaving wet tissues about the floor. Tr. at 752-753. Although I. had long been an issue for A., it had largely been under control until the fall semester of the 2015-2016 school year. Tr. at 777-778. Finally, in December 2015, the Parents initiated the admissions process at F.. B. testified that she was shocked by the results of F.’s admission’s assessment which she believed described A.’s disability as far greater than she had thought. Tr. at 753-754.

Thereafter, A. was accepted and the student commenced the second half of the 2015-2016 school year at F.. The Parent testified that her daughter’s emotional status returned to normal and she was no longer crying at night. As J. R. had become more independent and did not require extensive time for homework and evening re-teaching sessions by her and her husband, she was now able to participate in extracurricular activities. As a result of the student’s successful performance at F., the Parents opted to re-enroll her for the 2016-2017 school year. Tr. at 758-759.

On cross-examination, the Parent acknowledged that, notwithstanding her frequent communication with Ms. J. and her spoken concerns with her daughter’s program, she had not requested a new referral to the CSE. Tr. at 787.

Lastly, Brian Warren R. testified on behalf of the Parents. Mr. R. is an instructor of reconstructive language and history at F.. As an instructor of reconstructive language, Ms. R. initially completed 80 hours of training followed by additional extensive training in subsequent years. He additionally holds a Master’s degree in education and has been trained in the Orton-Gillingham protocol. He has been employed by F. since 2011 and has known A. since the fall of 2016. Tr. at 797.

As A.’s reconstructive language teacher, Mr. R. met with the student in class, five times a week for 45minute sessions. He described A. as a student whose reading fluency and decoding were below average. Tr. at 798. He described the use of phonics and word root cards which must be memorized and ultimately are used to facilitate reading skills. At the end of each day, students may participate in 30-minute tutorials if they or their teachers feel this is necessary. He observed that A. availed herself of these tutorials appropriately. Tr. at 800.

As the year ensued the witness observed that A.’s decoding skills and fluency had improved. Beyond this, he noted that the student’s comprehension had additionally progressed, an opinion based upon class assignments and in-class performance, Tr. at 802. Mr. R. testified that A. was responsive to the small class paradigm and the overall reconstructive language overall protocol of reconstructive language. Tr. at 804-805.

The School District’s Position

The School District maintains that the educational programming offered to A. was appropriate and meaningful consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). In furtherance thereof, counsel maintains that the September 4, 2014 and October 21, 2014 IEPs offered the student an educational plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]). Thus, there was no need to incorporate a corrective reading program into the child’s IEPs.

Inherent within this position, the School District asserts that the IDEA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. Thus, the School District maintains that compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits when necessary.

Beyond this, the District maintains that the student’s subsequent declassification as of May 22, 2015 did not deprive A. of FAPE as extensive accommodations and modifications remained in place through a Section 504 Accommodation Plan during both the 2015-2016 and 2016-2017 school years. Exh. 44. In support of this position, the District points to the student’s consistent and exemplary performance as an “A” student.

As a procedural issue, the District maintains that the Parent’s entitlement to relief via compensatory education is subject to the statute of limitations, consistent with NYCRR 200.5(j)(1)(i), and therefore, limited to the time frame commencing on November 18, 2014 through the end of the 2016-2017 school year. Exh. I at 2. Likewise, the District relies upon its right to prohibit the introduction of issues and claims that have not been properly disclosed in the Parent’s Due Process Complaint per 20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]), or subject to the amendment provisions of U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.508[d][3][ii]; 8 NYCRR 200.5[i][7][i][b]).

Finally, the District maintains that F. is an inappropriate placement for the student as it does not comport with the notion of providing services within the least restrictive environment.

The Parents’ Position

The Parents assert that the School District stands in abrogation of its duty to provide A. with a free and appropriate public education for the 2014-2015, 2015-2016 and 2016 to 2017 school years in violation of the IDEA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). At the outset, the Parents contend that removal of A.’s corrective reading program in the September 4, 2014 and October 21, 2014 IEPs deprived A. of FAPE.

Beyond this, counsel maintains that the May 22, 2015 504 Rehabilitation Act’s Section 504 Accommodation Plan (alternatively referenced as “504 plan” or “504 accommodation plan”) and declassification from special education reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. Specifically, the Parents maintain that the District’s failure to appreciate the extent of A.’s learning disability and to obtain appropriate evaluations compromised the integrity of its educational planning by failing to include the necessary reading/educational supports. In furtherance thereof, counsel maintains that the School District’s plans broadly neglected the student’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998). More specifically, the Parents maintain that A.’s reading program should have been continued.

Consistent with their argument, the Parents contend that (1) the F. School constituted an appropriate placement for their daughter during the relevant school years in question; (2) there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement; and (3) A. is entitled to compensatory education based upon the District’s failure to offer reading instruction beginning in November 2014 and extending through the end of the 2016-2017 school year.

Discussion

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); A. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the 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; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), were the IEPs of September 4, 2014 and October 21, 2014 IEP reasonably calculated to confer an educational benefit upon A. during the 2014-2015 school year?

The parties do not dispute that A. is G. and suffers from dyslexia. The student has a long history of special education intervention and 504 Accommodation plans based upon both reading and processing disabilities. She has received reading instruction in various forms, including AIS, Reading Recovery, Sonday Reading program, SRA as well as other IEP and 504 initiatives. A quick synopsis of the child’s academic history follows.

On August 20, 2012, the student was reclassified as G. following review of a private psychological report obtained by the Parents. Exhs. 9, 69. At this time, the child was referred for specialized reading instruction and specific fluency goals developed.

On March 7, 2013, a similar IEP was developed for the child, again mandating, “explicit, systematic, intensive reading instruction” along with multiple accommodations to address the child’s reading disability/dyslexia. Exh. 15 at 4-5. Although performing quite well in school, the Parents noted that the student was experiencing significant I., school phobic behavior and a sense of frustration over the amount of time spent on homework. Exh. 16. The student’s reading fluency continued to remain at least one to two years below grade level. Moreover, statements referencing the student’s achievement 19 of benchmark criteria on IEP goals for increased fluency and comprehension must be viewed within the context of lower grade levels and below average scores yielded on the District’s own E. (2012) and New York State ELA testing. Exh. 15 at 4. In fact, A.’s ELA teacher noted that, when reading class materials, the student was furnished with a CD of the book. Notwithstanding enthusiastic descriptions of the child’s progress, the IEP clearly notes that A. still requires development of foundational reading skills and an explicit, systematic, intensive reading program.” Exh. 15 at 5.

Thereafter, during the 2014-2015 school year, the District generated multiple IEPs for the student’s 20142015 school year. Exhs. 18, 21, 25, 31, 36. In January 14, 2014, the IEP indicated that the student was still lagging behind her peers on the NYS ELA exams, now declining in math as well. Exh. 18 at 4. While

A. had scored within average on vocabulary and passage comprehension, her reading and math skills remained “well below average” according to the District’s E.. Exhs. 56, 57. The IEP continued to recommend the use of audio versions of texts when available and “explicit, systematic, intensive reading instruction.” Exh. 18 at 5-6. The document noted that the student benefited from placing homework assignments on the board and providing an opportunity for A. to write it down. Significantly, even within the context of integrated classes, instructional pacing was an issue, although the student noted that, at the present time, the “pace of instruction” was comfortable. Exh. 18 at 5. Nevertheless, A.’s reading fluency varied widely, and the student only met goal (150 words read per minute) once. Exhs. 56 at 1; 58 at 1; 59 at 1. More importantly, although fluency was an issue, there is no evidence that consistency was ever achieved at the 150-wpm rate. ^[20]

On February 6, 2014 and March 3, 2014, the IEP was amended to reflect various administrative corrections. No convene was held. As previously, it reiterated the child’s need for a corrective reading program and various instructional/test modifications. Exh. 21 at 8. The child’s reading program remained intact as did the educational modifications articulated earlier. Although well into the eighth-grade year,

19 And even surpassing criteria progress monitoring indicated a reading level within the 25th and 50th percentiles of seventh graders, reflecting stability at one or more years below grade level. Exh.^[18] at 4; 19

On April 9, 2014, the IEP was again amended to reflect a specific “wait time” of 10 seconds to facilitate the student’s ability to process information and formulate responses. Once more, A.’s reading disability and her processing delays were referenced with a specific note indicating that her disability required [additional] “time to comprehend information.” Exh. 30. On September 4, 2014, the student’s reading program was administratively terminated. Exhs. 31, 33. In furtherance thereof, it was determined that the child had mastered her reading goal, a decision approved by the Parents. The Parents agreed with this decision as A.’s academic performance had been exceptional. The basis, however, for terminating this goal is unclear as the child’s subsequent October 21, 2014 IEP continued to recommend the use of “audio versions of texts when available or utilizing test reader software.” Exh. 36 at 5. Although Ms. N. opined that A. was ready for declassification, she had a limited familiarity of the student, basing her opinion, in part, upon the fact that A. seemed independent in school and did not request assistance. In fact, the student’s co-teaching special educator testified that class reading was conducted as a group, a scenario which could easily mask the child’s difficulties. Tr. at 308.

At the outset, I find that the child did not meet her reading goals and that termination of A.’s reading program was precipitous. In fact, the student remained consistently one to two grade levels behind her peers, depending upon when testing occurred. For example, although a seventh-grade student during the 2012-2013 school year, A. was tested at the sixth-grade level and continued to struggle. Tr. at 54 at 1. While fluency criteria was set at 125 words per minute, this goal was never reached during A.’s seventh grade 2012-2013 school year and it is unclear why this criteria was then raised to 150 words per minute. Exhs. 56, 58 at 1.

In eighth grade, the student’s reading goal continued to lag one at least one year behind. Significantly, even relative to seventh grade criteria, the student met her IEP goals inconsistently while E. testing continued to reflect below average reading scores when compared with her eighth-grade peers. Cf Exh. On September 4, 2014, the CSE again convened. Although reading instruction was removed from the child’s IEP, it appears that A. was still “reading between the 25th and 50th percentile of the sixth grade.” Exh. 31 at 5. Assuming reference to a sixth-grade level was an erroneous description carried over from the January 14, 2014 IEP (Exhs. 18, 19), the student was still a ninth grader with a seventh-grade fluency level. Exh. 31. Moreover, the child’s IEP continued to recommend the use of audio versions of texts or text reader software.

The student’s last IEP Progress Report for A.’s reading fluency goal reflects only one occasion when the student met criteria. Exh. 59 at 1. Out of eight trials between January 2014 and June 2014, A. met criteria only once, averaging 123 words read correctly during this time. This is at least 25 words fewer than criteria and less than the student’s 2012-2013 goal. Exh. 56. Clearly, a skill is not “acquired” until it is demonstrated across time throughout various settings. While the District argues that data points merely reflect snapshots of a student’s progress at one moment in time, the student had not consistently achieved the District’s own criteria for progress when its reading program was terminated, nor had A. met proficiency on the New York State ELA exams. Exh. 59. Nevertheless, the fluency goal was terminated and a new goal addressing attention was added. Exh. 36 at 8. More troubling is the District’s continued recommendation that A. utilize audio versions or text reader software for class materials. Ibid. at 5.

While there is no doubt that A.’s progress demonstrated an upward trend, she continued to demonstrate significant deficits with reading fluency. I note, moreover, that the Parents’ consent does not relieve the District of its primary obligation to furnish A. with FAPE. Although pleased with A.’s clear success in school, they relied upon the District’s expertise and its representations that their daughter no longer required a corrective reading program. In fact, the testimony indicates that B. was unaware of the extent of A.’s reading deficits until tested later by F.. In view of the above, I find that the termination of A.’s reading program compromised the student’s access to FAPE.

Point II: Was the District’s declassification of A. consistent with its IDEA mandate, pursuant to 8 NYCRR 200.4 § 200.4(c)(3)? If not, was A. offered FAPE during the 2015-2016 and 2016-2017 school years?

The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 9436; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

In furtherance thereof, a board of education is required to evaluate a child before determining that that child is no longer a child with a disability (20 U.S.C. § 1414[c][5]). As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (20 U.S.C. § 1414[c][1][A]). On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (20 U.S.C. § 1414 [c][1][B]; 8 NYCRR § 200.4(c)(3)). Among many factors to be considered, a review of the child’s academic improvement and functional performance must occur. See also 8 NYCRR § 200.4(b)(5)(i).

In December 2014, the CSE convened and generated its last IEP for A. Exh. 41. At this time, the Parents reported that A. had been very successful in all her classes and was functioning consistently as an honor student. Based upon the student’s exemplary grades and classroom performance, it was determined that the issue of decertification would be revisited at the end of the 2014-2015 school year.

In May 2015, A. was declassified following a review of the child’s present levels of performance. Exh.

44. Present at the meeting were the child’s psychologist, guidance counselor, special education teacher and general education teacher in addition to B. It does not appear that any formal testing was referenced other than outdated evaluations from 2006 and NYS ELA and Math scores up to 2013. Rather, the decision appears to have been based exclusively upon teacher/Parent report, academic performance and grades. Although the student was due for a triennial review, testing had been deferred to accommodate the Parent’s request that a psychological be performed at F. that summer.^[21] At this time, the parties agreed to declassify A. as of June 11, 2015 and to provide her with a 504 Accommodation plan which would essentially serve as declassification support services (8 NYCRR 200.4 [c][1][iii]). For all intents and purposes, the declassification would be initiated at the beginning of the 2015-2016 school year. No follow-up reading probes were recommended.

It is noted that declassification determination must proceed in two steps. The first prong determines the existence of a qualifying disorder. The second prong identifies whether a child with a qualifying disorder "needs" special education and related services as a result of that disorder (20 U.S.C. 1401(3)(A)(ii)). In the matter at bar, the parties agree that, consistent with 20 U.S.C. § 1401(3)(A)(i), A. is H. and has a reading fluency disorder. Tr. at 175, 399. Thus, prong one has been established.

The only other question is whether the student required special education because of her disability. As suggested by R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir.2012), an assessment of the student’s needs must be fact sensitive and responsive to the details of the case. Thus, in making this determination, the courts advocate a “holistic approach” in which multiple factors are considered. (Doe v. Cape Elizabeth Sch. Dist., 832 F.3rd 69, 77 (1st Cir. 2016), citing (20 U.S.C. § 1401(3)(A)(ii)). While academic performance may be “a fair indicator of her reading fluency deficit,” no single assessment or measure may undermine the significance of a reading fluency disorder especially where the child's generalized academic performance contradicts the results of his or her specific reading assessments. Doe, supra, at 36.

The U.S. Department of Education has advised, moreover, that a disability must be determined "on a caseby-case basis, depending on the unique needs of a particular child and not based only on discrepancies in age or grade performance in academic subject areas." Letter from Alexa Posny, Director of the Office of Special Education Programs, U.S. Department of Education, to Catherine D. Clarke, Director of Education and Regulatory Advocacy, American Speech and Hearing Association, U.S. Dep't of Educ. (Mar. 8, 2007). Thus, even a child . . . who is performing well above average according to grades and standardized test results, may be able to show a need for special education, if she can demonstrate a social or behavioral problem that hinders her ability to benefit from the educational experience in school. See West Chester Area Sch. Dist. v. Bruce & Suzanne C. ex rel. Chad C., 194 F. Supp. 2d 417, 420 (E.D. Pa. 2002).

In the matter at bar, A.’s exemplary academic performance reflects many factors, including strong cognitive abilities, a dedicated work ethic and supportive parents. A determination of need which relies exclusively on A.’s overall academic achievements would be inconsistent with the mandate set forth in Doe, supra. For example, unlike the student in Doe, A. did not perform well on standardized tests and the District’s latest E. testing in 2014 reported that her fluency was “well below average.” Exh. 56. In fact, by 2014, the student no longer even participated in the New York State Standardized Math and ELA exams, after years of scoring below proficiency on the ELA section.

Significantly, the District’s psychological evaluation, performed after declassification but at the beginning of the 2015-2016 school year, yielded borderline scores in working memory, a measure of concentration, attention and short-term recall. These scores were largely consistent with those obtained by Dr. S. at F. in 2012. Exh. 69, 71. Similarly, A. tested below average on fluency subtests or timed measures of reading and mathematics. Exh. 71 at 5. When testing, Dr. J. observed that J. R. took a long time to complete tasks, but displayed great effort. Ibid at 2. While many of A.’s test results yielded average scores, the student fared poorer on timed measures. Thus, sub-tests requiring an element of automaticity such as Broad Reading, reading fluency and math on the L. reflected low average scores. Significantly, Dr. S. testified that the student’s high cognitive abilities masked the extent and severity of her processing and reading disabilities, suggesting that A.’s deficits were worse than they presented. Tr. at 735-736. In fact, a month before the District’s discussion regarding declassification, the student’s November 6, 2014 IEP contained a processing goal as well as a recommendation that audio versions of class materials be provided to. A. Exh. 36. In contrast, the student in Doe scored above average or in the average range in almost all areas in which she was tested, including reading fluency (emphasis ours). Doe at 9, supra.

By December 1, 2015, an Admissions Assessment performed by F. reported M.-5 scores lagging between

3 to 6 six years behind in terms of grade equivalents; measures on the Slosson Oral Reading Test- Revised at a 6.8 grade equivalent and scoring on the IOTA Word List Test at the 5.3 grade equivalent. Exh. 6 at 2-3. Nevertheless, A.’s strong cognitive abilities, work ethic and supportive parents compensated for the fluency and processing issues she experienced during the day at school. Her strong self-advocacy skills and discipline, however, should not negate the existence of a need for special education. Although tested on a one-to-one basis in the quiet offices of a psychologist, these artificial testing accommodations are inconsistent with the manner in which materials are presented to students within the classroom. As a result, the child’s standardized scores essentially present a cognitive and achievement profile reflective of an alternate test reality rather than one based upon actual classroom performance. This is especially true for a student whose auditory memory is impaired.

Unlike the student in Doe, A.’s reading fluency was not probed or monitored following her declassification and it is unclear whether the student’s fluency skills remained stable or declined once reading instruction was terminated. At the very least, the District could have initiated a transition plan which incorporated a corrective reading progam, consistent with 8 NYCRR 200.1 § (o)(o)(o), to monitor and support the child as she moved from the protective environment of an integrated classroom to declassification with accommodations.

While A.’s classroom accommodations were designed to compensate for the increased instructional pacing and sophistication of a mainstream class, it was clear at the outset of the school year that the 504 plan was not being implemented consistently. For this reason, it is difficult to ascertain the impact of the District’s failure to provide A. with a corrective reading program. The inconsistent application of 504 accommodations, moreover, was particularly significant as the Parents had earlier advised the District that A. strongly relied upon her accommodations to organize, plan and achieve in school.

As early as October 2015, the record indicates that the student was struggling under the 504 plan. The Parent testified that notice provisions, preferential seating and guided notes were not being offered consistently. In one occurrence, the student’s desire for clarification was met by a referral to the teacher’s website. In another, a reduced grade was offered as an option for students who did not understand the assignment. On yet other occasion, a teacher forgot to mention a test had been scheduled and referred students to a review sheet on her website. Exh. CC, passim.

As A.’s disability was described as an “invisible” one, I am not certain A.’s general education teachers understood the importance of the student’s accommodations, particularly given the student’s ability to excel academically. Tr. at 394; Exh. 48. As the Parent credibly testified, “. . . what bothers me is I just think there’s a communication gap between . . . special ed and the teachers. I said there’s just like a piece missing.” Tr. at 751. As Ms. P. had only known the student since the beginning of the school year, and had only reviewed the 504 plan, I am not persuaded that she had a strong sense of A.’s abilities.

In her October 2015 report, Dr. J., the author of the District’s psychological evaluation, reported that, “[A.] makes great attempts to organize and manage her school work. Although, more recently, this has become a challenge and A. often feels stressed about her academic demands.” Exh.71 at 2. Yet, Ms. P., the child’s mainstream English teacher, was unaware of this.

On November 19, 2015, a meeting was held with school personnel to discuss the implementation of A.’s 504 plan. Other than the Parents, psychologist and school counselor, only one teacher was present; unfortunately, general educator teacher Renee Reinhardt’s relationship to the student is unclear as she did not testify.^[22] At this time, a provision addressing A.’s I. was incorporated into the 504 plan. ^[23]

B. continued to express concern that school personnel did not “have an understanding of A.’s disability and know what happens behind the scenes to see what goes into the 504 and her history.” Exh. 48. Although Ms. P. testified that she was aware of the student’s dyslexia and had “signed off” on reviewing A.’s 504 plan, she also testified that she was unaware of the Parents’ concerns regarding implementation, A.’s struggles and I.. Tr. at 328. She noted that the student did not avail herself of assistance during her planning periods and generally indicated that school was proceeding well. Ms. P. testified that she had no knowledge of the Parent’s concerns although she had spoken with them at Open House and had communicated via email with them. Having so testified, I believe Ms. P., should have known of the student’s issues as early as October 2015 when Ms. Albrechcinsky issued her report.

Clearly, there was a lack of communication between Ms. J., the District’s Superintendent and A.’s teachers if this was Ms. P.’s understanding. Moreover, if the student did not approach Ms. P. for extra help, it is likely that this occurred as a result of prior unsuccessful efforts to engage Ms. P.’s assistance. Exh. CC at 5. While certain aspects of the plan seem to have been honored, other components were neglected. Tr. at 748- 749; Exh. 48. Indeed, it appears that there was little supervision regarding implementation of the student’s 504 plan across content areas and teachers. Moreover, given the student’s “invisible” disability, it is unlikely her teachers were aware of the extraordinary efforts supporting A.’s performance “behind the scenes.” Exh. 48. While, to her credit, Ms. J. continued to service A. in the High School (although this was not her assignment), ultimately I believe this created some difficulty in her ability to orchestrate the consistent implementation of A.’s 504 accommodations.

Clearly, the District believed the child’s fluency and processing issues did not warrant classification and that A.’s fluency deficits could be addressed through the provision of instructional modifications and accommodations. However, it is clear that A. should have had a reading program incorporated into her 504 accommodations, if only as a temporary transition plan into declassification. This scenario was exacerbated by the inconsistent implementation of the student’s 504 Accommodation plan. I note that there was no testimony regarding specific District protocol for incoming teachers to review and sign off on 504 plans. While Ms. P. testified that she had reviewed A.’s 504 plan, she did not review any other assessments and has no special education background. It is unclear whether she was familiar with A.’s long history of reading interventions and processing deficits. Similarly, it is unclear whether any other instructional personnel reviewed the student’s 504 plan or any of the supporting assessments. This was critical as A.’s 504 accommodations were the student’s only supports available to facilitate A.’s ability to function in a large, heterogeneous mainstream classroom. The record is silent regarding the District’s procedures for oversight, appropriate implementation, training of personnel and feedback as to the use and success of A.’s modifications. In the absence of these safeguards, I do not believe A.’s 504 plan was executed properly and, whatever reading support the District believed it offered was illusory.

Ultimately, the Parent testified that she and her husband would reteach the materials at night while A. gave up her week-ends to study. Eventually, B. testified that her daughter began to experience panic attacks related to school and school phobic behavior, crying herself to sleep and resisting school. Tr. at 752-753; Exhs. CC, 47, 48, CC. These are the behavioral/social aspects contemplated by West Chester Area Sch. Dist. v. Bruce & Suzanne C. ex rel. Chad C., supra. “While there is no precise standard for determining whether a student is in need of special education, and well-settled precedent counsels against invoking any bright-line rules for making such a determination. . . the Supreme Court, however, has clearly repudiated the notion that grades can serve as IDEA's litmus test (West Chester Area Sch. Dist., citing Rowley, 458 U.S. at 203, n. 25, 102 S. Ct. 3034). In the matter at bar, the degree of parental coaching and instruction provided by the Parents, along with A.’s I. and panic attacks, militates against the notion of an appropriate educational plan in effect.

Finally, I note that the case at bar is easily distinguished from H.M. v. Haddon Heights Bd. of Educ., 822 F.Supp 2nd 489, 57 IDELR 186 (D. N.J. 2011). In that matter, the Court determined that the student’s declassification had been proper, based upon assessments and teacher observations that H.M. was operating at or near grade level in overall reading fluency. While the student’s evaluations indicated reading fluency skills below grade level, the child’s teachers reported that the student’s reading fluency deficiency was not adversely impacting her educational performance. In the matter, sub judice, A. has presented alternately with a reading fluency deficiency as well as a processing disorder. Her scores on several standardized measures have yielded borderline working memory/processing speed scores. Exh. 71 at 2; 69 at 4. More substantively, I do not believe A.’s teachers were familiar enough with the student to arrive at a reasonable conclusion that A.’s disability was not having an impact upon her ability to function at school. Clearly, Ms. P., the only teacher who testified, was simply unaware of both (1) the extraordinary after school and week-end efforts which supported the child’s academic success and (2) the I./panic attacks to which A. had become subject.

Point III: Was F. an appropriate educational placement for A. during the latter half of the 2015 school year and the 2015-2016 school years?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo 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]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]). The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

I find, at the outset, that the academic program offered at F. correlates well with the student’s academic needs, as identified in her psychological evaluations, IEPs and 504 Accommodation plans. F. is a college preparatory school, serving cognitively intact students with language-based deficits. Its educational principles are grounded in providing multisensory language experiences and instruction to students. All teachers receive instruction in the reconstructive language protocol so that new skills are reinforced across subject areas throughout the day. A.’s fluency and processing deficits are addressed daily through small group instruction and a specialized reading program using both reconstructive language and Orton Gillingham protocols. The use of intensive phonics instruction and word root cards are age appropriate for the student, facilitating reading skills in new content areas. As part of F.’s remedial interventions, content area tutorials and supervised study halls are additionally available. This is entirely appropriate for the student. Moreover, A. participates with peers whose functional profiles are consistent with her own. The school provides assistive technology including Text to Speech and Speech to Text software. In sum, the small group instruction and specialized reading program by instructors trained in both reconstructive language and Orton-Gillingham methodology is entirely appropriate for the student who benefits from a multi-sensory approach to reading along with smaller class sizes. Although the District maintains that F. is not an appropriate placement as it is unduly restrictive, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112).

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the second part of the 2015-2016 school year and 2016-2017 school years?

I find that there are minimal equitable factors which militate against the Parents’ right to recovery. It is clear that the Parents’ concerns about A.’s program and their interest in F. were articulated early on during the 2015-2016 and 2016-2017 school years. For years, the evidence indicates that the Parents participated willingly in their daughter’s CSE and 504 convenes, permitted evaluations of their child and shared private assessments they had obtained themselves. Clearly, the Parents had a long history of collaborative decision making during the child’s tenure within District. Long-time residents of this District, they appear to have developed cordial relationships with personnel, working together for years without animosity or hostility. They remained transparent when addressing their concerns and plans for F..

On December 23, 2015 and August 18, 2016, the Parents gave notice to the District regarding their concerns so that the District might attempt to resolve these issues amicably. Exhs. 4, 7. While the District maintained its position that declassification was appropriate for A., the Parents were, nevertheless, invited to continue the discussion regarding educational planning for their daughter. Exh. 7. They did not do so. While it is clear that the Parents were pleased with A.’s success at F., they owed the District the opportunity to revisit their daughter’s 504 accommodations for the upcoming 2016-2017 school year. Again, while this may have been a futile effort, they owed the District this consideration and I must consider this lack of reciprocity when fashioning an equitable remedy. Finally, while it is true that the Parents agreed with the District’s plan to declassify their daughter, this does not obviate the District’s ultimate mandate to provide

A. with FAPE.

Point IV: Are the Parents entitled to compensatory education for the period of time in which A. did not receive a corrective reading program? Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEIA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]), although compensatory education may apply.

In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005). Under the theory of "compensatory education," courts and hearing officers may award "educational services . . . to be provided prospectively to compensate for a past deficient program." See G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F. 3rd 295 (4th Cir.2003). In part, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child’s education. In sum, compensatory education is an equitable remedy which may apply when FAPE has not been provided.

In the instant matter, I find that A. is entitled to compensatory education based upon both the District’s failure to include a reading program into either her 2015-2016 IEP or the subsequent 504 accommodation plans it recommended. Having said this, I believe compensatory services in the form of a corrective reading program are inclusive within the F. curriculum and there is no need to order additional services.

Conclusion

The Parents’ request for relief is granted in part for the 2014-2015, 2015-2016 and 2016-2017 school years with some reduction in tuition reimbursement based upon equitable considerations.

Wherefore, it is hereby ordered that:

The Parents shall duly submit affidavits memorializing payment and attendance at the F. School. Within forty-five (45) days following receipt of such submission, the District shall reimburse the Parents for tuition expenses incurred at F. School for the 2015-2016 and 2016-2017 school years. Such payment shall be reduced by twenty (20) percent, reflecting a consideration of equitable factors. This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint dated November 18, 2016.

Dated: December 28, 2017

_________________________________________

Lynn Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer

Persons in attendance on June 21, 2017

For the Parent:

Law Office of H. Jeffrey Marcus, P.C. by Kyle M. Costello, Esq.

A., Parent

B., Parent

For the School District

Harris Beach, PLLC by Jeffrey J. Weiss, Esq. Harris Beach, PLLC by Anne M. McGinnis, Esq.

Kristin Kendall-Jacobs, Director of Instruction, Student Services and Assessment, Iroquois Central School District

Persons in attendance on July 25, 2017

For the Parent:

Law Office of H. Jeffrey Marcus, P.C. by Kyle M. Costello, Esq.

A., Parent

B., Parent

For the School District

Harris Beach, PLLC by Jeffrey J. Weiss, Esq.

Harris Beach, PLLC by Anne M. McGinnis, Esq.

Kristin Kendall-Jacobs, Director of Instruction, Student Services and Assessment, Iroquois Central School District

Sharon N., Special Education teacher, Iroquois Central School District

Rebecca P., Teacher, Iroquois Central School District

Persons in attendance on September 26, 2017

For the Parent:

Law Office of H. Jeffrey Marcus, P.C. by Kyle M. Costello, Esq.

A., Parent

B., Parent

Robin O., Head of the Upper School, F.

Kathleen Q., Chairperson, reconstructive language department, F.

For the School District

Harris Beach, PLLC by Jeffrey J. Weiss, Esq.

Harris Beach, PLLC by Anne M. McGinnis, Esq.

Kristin Kendall-Jacobs, Director of Instruction, Student Services and Assessment, Iroquois Central School District

Melissa J., School Psychologist, Iroquois Central School District

Persons in attendance on September 27, 2017

For the Parent:

Law Office of H. Jeffrey Marcus, P.C. by Kyle M. Costello, Esq. A., Parent

B., Parent

Mari Jo S., Ph.D, psychologist, F.

Brian Warren R., instructor of reconstructive language, F.

For the School District

Harris Beach, PLLC by Jeffrey J. Weiss, Esq.

Harris Beach, PLLC by Anne M. McGinnis, Esq.

Kristin Kendall-Jacobs, Director of Instruction, Student Services and Assessment, Iroquois Central School District

For the Parent:

Kristin Kendall-Jacobs, District Teacher

Sharon N., Special Education teacher, Iroquois Central School District

Rebecca P., Teacher, Iroquois Central School District

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, 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 the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties’ 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, 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).

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html. Dec2717, 08:11p p.1

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J R andD.MR., as Parentso[ J Rv Iroquois Central SchoclDislrict

Qis~ict ~xl~ibits

EXhibit De~cti~J~l Pa@es Submitted Evidence Date 1 ~eProcessCo.plain: 2n(J Noncel~ Requestat1 Impgrtial HearingdatedNovember

1 @,2017" 6 pages

2 ~Jovern

bet 22,2016

]nilial ~pearanc~

Letterarid Proced

Lit al Safegual’ds ~lolice from Jeflrey .J ~,reis S Io Kyle M. Costello2 page~

3 gOVeln

bE-r 2~, g016Letter fromJ ef~reyJ VVeissto Kyle M. C~stelo/lO~rl~alr~sponse to hearingrequest) !2 pag~

~- ~,LlgUZ.t1B2(]16Letl~r frorll Jef’lrey 3ndDawn

MarieRosser to KnstinKendalI-Jakus

(tuition reirnl0ursemerg

clailn) 1 page

~,~gu~2~], 2016Letler from Knslir KendaI-Jakus to Jeffrey andDawnMarieRosser(denyingtuition reimbrusement 5 gaim) 1 pa~e

]ec~-mber 17, gC15L.el[er from Jeffrey andDawnMarieRosserto K[istin KendalI-Jaku~ (tuibon reimbursementclaim), 6 ncluding Th~G~vSchoolAdmissions,~,ssessmenldated Dec~rnber1 2015¸ 4 pages

]ecember ~

23, 2015Lelter fron Kri~tin Kendall~JaKusto Jeffrey a~dI~awl3MarieIRos~er{denyinglution reimbur~erner t 7 gaim) ! page g ~04Accommodation

Planlor Ju~e11. 2012to June8, 2013 2 pages g !IEP daledAJgust20, 201g(NewReferral) 7 pages

1[~ ~ln u~es~r August20, 2012CSE~teeling Z pages 11 Prior WnttenNoticedatedAL~gUSt

3~J,2012(InJgal e~g;bility recommendation) Z pages 12 IEP dated Sepler~ber26. g312iPr~gramRevie~v) :) pages 13 Minutesfor Seplember

26, 2012CSEtJleeting 3 pages

14 Prior Wrdler Noticedat.=d October29. 2012(ProgramRe~ieWl _~pages,

15 ]~:P datec MarchT. 2013(~nual Review} 12 pages

16 Mi~u:es

for ~,~larch7 20"L3CSE

rvleeting ~ pages

17 Fl"~or WrJ~len

No[ice[~ate~April 18, 2013(AnnuaJ

F~e~Jew) ~ pages

18 12 pages

iIEP daled J~nu~Pi14, 2014!Anr~ualReview 19 Minutesf~r Janua~14, 2014CSEMeelir~g ~ pages 20 Pnor Wri[ten Notice dated January23, 2014(AnnualReview} ~ pages 21 IEP dated F~rua~6. gC14(Amengme~lt

with NoMeei~ngHeld~ 11 pages

22 IEP Adder~dLm

daled February6, 2014 I page

2g Requestfor IEP Amendnlent

daled February3, 2014 I page

24 Letter te Parentsdale~ ~ebruary6, 2014(Amend

I EP1 I page

25 Prior ~ritten Notice dated Febru~6, 2D14(Amend

I EP) ! page~

26 IEPdatedMarch3, 2G1 ~ tArnerx~lr~er~twilh NOMeeting

Held) 12 pages

27 IEP ,~.ddendum

dated March3, 2914 1 page

28 Request~r IEP Amendrne~t

dated Februa’y26 2DI 4 1 page

g9 Letter 1o Parentsdated March3, 2014~Arner~dIEP) I page

30 Prior Written I~otice datedApril 9, 2014(~end]EP) 2 pages

31 IEP dated September

4, 2C,14[Amendment

with NoMeetir~gHeld) 12 Pages

32 ~EPAdde~dLJrn

datedSeptetnl~er 4 2014 page

3g ReqL~estfor IEP Amendment

dated September2, 2914 page

34 e~erto Parentsdated September

4. 2014(ArT]endEP/ page

35 4, 201~- (.~me~dIEPi

F~or Wri~lenNoli¢~ datedSeptember 2 pages

36 IEP daled Ocle bet 21,2914IAmendrnent

wr:h NOM~etingHeld) 12 pages

37 IEP Addendum

(grrJ Requestfor Conserlt) dated October21,2014 page

35 IEP Amendmenl

dated September24, 2914 p~.ge

3~ Letle[ [o Parentsdated October22, 2D14(A~endIEP) page

4C, Plier Wntt~nNotice dated October22 2014(Amend

IEP) 2 p~ges

Z8702531~751;@ Page I Dec2717, 08:01p p.1

IVIANAGINGA2TORNEY

H, JEFFREY MARCUS

LAW

OFFICES

OFH. JEFFREY

MARCUS,

P.C. s oR.,=o

Y

SPECIALEDUCATION

ATTORNEYS KYLE

COSTELLO

WNYOFFICE: NYCOFFICE: ASSOCIATEATTORN

t9 LimestoneDr., Suite 3 135o Broadway,Suite 802 OLGAVLASOVA

WitIiamsville, NewYork 14221 ]VewYork, ~Nry100t 8 COURTNEY

HAAS

Telephone: (716)634-2753 Telephone: (347)446-9903 WEN~DYZIMN’Y

Fax: (716) 2o4-2o41 Fax: (212) 913-9828

Emaihspeeiah’dlawr~mae.com Emafl: speeialed~az~(~moc.eom OFCO~SEL

NICOLE SALDANA

GIN.4. DECRESCENZO

STEVEN GOLDSTEIN

WILLIAM SCHOELLKOPF

VANESSA JACHZEL

KAREN MCMAHON

LISA GIBERTONI

MARCY HAGEN

EXHIBITLIST

Student: Jenna Rosser

DOB-lO/22/1999

IMPARTIALHEARINGREQUEST EX. -- Impartial DueProcess HearingRequest, 11/18/2o16,6 pages A

District DueProcess Response,11/28/2016,2 pages B

IEPS

12/q18/2014 IEP, 12 pages C

Io/21/2o~IEP, 11 pages D

3/7/201~tEP,11 pages E

9/26/2012IEP, 8 pages F

EVALUATIONS

G0WSchoolPsychoeducationa!E~aluation, July2012,20pages G

Dr. JacksonNeuropsyehologica]

Evaluation. JulyandAugust

2o06,

8 pagesH

GOWSchool AdmissionsAssessment,12/1/2015, 3 pages I

504

LetterfromDistrict, 6/11/2015, 1 page J

504 Accommodation Plan, 5/22/2015, 2 pages K .---. 504 Accommodation Plan, 11/19/2m5, 3 pages L

504 ConsentForm, 5/22/2015, 1 page M

p.2 Dec27

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CORRESPONDENCE

._. Letter from District re IEP, 9/11/2o14,I page N

Prior Written Notice, 10/22/2014, 2 pages 0 - Prior VCrittenNoNce,12/15/2014, 2 pages P

Prior WrittenNotiee, 6/8/2o15, ~ pages Q

G0W SCHOOL

GowSchool 2o16-oo17AcademicReports, 12 pages R

GowSchool Testing Record, 4/27/2o17, 2 pages S

GowSchool 2o16-2oi74th MarkingPeriod, (undated), 5 pages T

GowSchool2o15-‘)o16AcademicReports, (undated), 6 pages U

NOTICE LETTERS/RESPONSES

Notice Letter from Parent 12/17/2o15,1 page V

Notiee Letter from Parent, 8/18/2o16,I page W

Letter from District to Parent, 12/‘)3/2o15,1 page X

Letter from District to Parent, 8/2o/’)o16,1 page Y

MISC.

CSEMinutes, 3/7/2o13, z pages Z ..-_. CSEMeetingLog, 3/7/2o13, 1 page AA

2o13-‘)014AimsWeb(Reading), 2 pages BB

6. f,,,o

hi_5

CV/’~°’°--1 O-’o ,~aTo,’r.~, P~.-Jb.

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Footnotes

[1] The E. report is somewhat confusing as the document references the 2016-2017 school year and references A. as a tenth grade student. Tr. at 65.

[2] Spring percentiles.

[3] It is unclear why the baseline words read correctly goal was lowered as of September 26, 2012.

[4] The MAZE is a receptive multiple choice “closed” comprehension measure of receptive knowledge. Tr. at 452.

[5] The witness explained that the School District does not prepare its IEPs at the end or beginning of the student’s school year. Rather, the District conducts “rolling” IEPs which overlap two school years and includes service dates for two grades. Tr. at 114.

[6] Relative to other middle school students within District

[7] Ultimately, the student refused to participate in NYS ELA and Math testing beginning in 8th grade and, as a consequence, standardized test measures are unavailable.

[8] When normed against the District’s middle school cohort. Tr. at 184-185.

[9] The inference is that the child is progressing at the same rate as her peers, but continues to remain at a lower level of function.

[14] Ms. J. acknowledged that there have been years in which more than 50% of students taking ELA exams scored below level 2. For this reason, a poor score on these examinations did not necessarily warrant referral to the CSE. Tr. at 460.

[16] Word attack fell at the 8th percentile.

[17] Reading narrative text vs. reading isolated words

[18] i.e. bringing in Kleenexes or canned foods, getting extra points if one’s team won in “Jeopardy”

[20] The child’s comprehension skills were intact, and this was essentially a non-issue for A.

[18] and Exh. 55. Only twice did the student meet criteria, based upon seventh grade standards. In fact, even the District’s E. scores consistently noted that A.’s decoding was “well below average.” Again, even this progress was made relative to a lower grade level. Exh. 56.

[21] When the Parents did not obtain the requisite testing, the District proceeded with its own assessments in September.

[22] The only teacher who testified regarding the 2015-2016 school year, the year in which A. was declassified, was Ms. P..

[23] Per A.’s November 19, 2015 504 Plan: “ E. Behavior: Allow A. to state, ‘I need a break’ when she needs to leave class, allow A. to go to Student Services office and meet with a trusted adult to process the incident . . . “ Exh. 47 at 2.