Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 FINDINGS OF FACT AND ORDER of the Regulations of the Commissioner of Education BEDS No.

NYS ID. No.

1 and 2, on behalf of their infant son, 3

-against-

The 4 Union Free School District

Procedural Context

On October 24, 2017 I was appointed to hear the matter of 2 and 1 as parents of 3, versus the 4 Union Free School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, a pre-hearing conference was convened telephonically on November 28, 2017 for the purpose of developing a litigation calendar and, where possible, framing the issues. When the parties were unable to arrive at a mutually satisfactory resolution of this matter, hearings were scheduled and held on February 14, 2018; February 15, 2018; March 26, 2018; March 28, 2018 and May 3, 2018.

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 July 24, 2018. Specifically, the Parents assert that the School District’s educational placement, as memorialized by the May 24, 2017 and September 13, 2017 IEPs, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. A-C. As a result thereof, they are seeking tuition reimbursement for the 2017-2018 school year in furtherance of a unilateral transfer to the 5 Academy (hereinafter “5”), a non-public school setting. As a corollary, the Parents have defended the educational program implemented by 5 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.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2017-2018 school year, the student was fifteen years old. I note that 3 is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and is classified with an “6ly ” as that term is defined by 20 U.S.C. § 1401(a)(1).

A list of persons in attendance and of evidence is appended hereto.

The School District’s Case

7 testified as lead witness for the School District. Ms. 7 holds a master’s degree in 23 and therapeutic intervention as well as a professional diploma in school psychology. She is presently a doctoral student in the educational leadership program at St. John’s University. The witness is employed as a school psychologist for the District, a position she has held for approximately ten years. As a school psychologist, Ms. 7 is responsible for conducting evaluations and assessments, providing direct service pursuant to IEP mandate, offering informal support to parents and consulting with school personnel. Ms. 7 is additionally responsible for participating in CSE and Section 504 committees as both participant and chairperson. Tr. at 21-22. She has been assigned to the District’s High School for the past three years. Ms. 7 first met 3 when he was referred to the CSE in his kindergarten year at 8 School. At this time, the witness evaluated the child, but determined that the child was not eligible for special education services although additional assessments were recommended. By first grade, however, 3 began receiving support pursuant to a 29 USC § 504 plan (hereinafter “504” plan), a decision based upon certain neurological and occupational therapy concerns. Tr. at 25. Thereafter, the child remained within District for several years, participating in its part-time gifted and talented program. By middle school, however, the child began to struggle academically and 6ly. 11, 12 and 9 behavior became prominent. As the material became more complex, 3’s executive abilities foundered. In the larger middle school, the child’s sensory issues were additionally exacerbated. In the spring of 2015, 3’s seventh grade year, the child was parentally placed at the 10 Day School (hereinafter “10”) as the Parents believed their s issues could be addressed more meaningfully in a small environment.^[1] Nevertheless, within months of 3’s eighth grade year, 10 proved unsuccessful. From the end of spring until the close of 3’s eighth grade year, the student was unofficially home-schooled as 3 now refused to attend class. Tr. at 26, 989.

In July 2016, the Parents re-visited the possibility of re-enrolling 3 in the District’s High School for 3’s ninth grade 2016-2017 school year. In furtherance thereof, the witness testified that the Bs. wrote to the District on July 14, 2016, requesting assistance so that they might facilitate 3’s reintegration into public school classes. Exh. 2. Specifically, the Parents were concerned about her s ability to, “handle transition; resiliency, self-esteem, acceptance and trust of others and , as well as ability to stay in school and function consistently. There were concerns about attendance as well.” Tr. at 30. As the witness had a long history with 3 and his family, Ms. 7 was assigned to conduct the psychological assessment. Exh. 4. In preparation, the clinician spoke with the Parent several times and met with the student during an informal tour of the high school. In addition, the witness reviewed prior report cards, progress reports and the District’s educational testing conducted on August 11, 2016. Exhs. 3, 4 at 2. She did not, however, have any records from 10, but did discuss the child’s experience there with the Parent. Tr. at 32-33.

Testing included the 15 Scale for Children, Fifth Edition; the 16 (hereinafter “16”) and a Level I Vocational Assessment. In addition, a social history was completed. Reviewing the student’s performance, Ms. 7 noted that while the 15 yielded a full-scale IQ of 118, this was not an accurate summary of 3’s cognitive strength as there was wide variability within sub-tests. Although the student did not demonstrate any normative weaknesses, the deficits which were demonstrated were significant relative to 3’s overall ability to function. Tr. at 39.

Notably, the child’s over-all verbal comprehension score fell at the percentile, a measure of 3’s ability to access, apply and reason through language. Tr. at 37. Similarly, fluid reasoning, a measure of non-verbal and quantitative problem solving fell at the percentile. Measures of working memory, both auditory and visual, additionally yielded high average scores.

In contrast, the child’s visual spatial skills reflected scores at the percentile, a relative weakness for 3 although not a normative weakness. Thus, when compared to 3’s peers, the child’s visual spatial skills remained within the average range although they were substantially weaker when compared with the child’s own cognitive profile. Tr. at 37. Again, while measures of fluid reasoning were stronger than his visualspatial performance, it remained a relative but not normative weakness when compared with 3’s highly developed verbal reasoning skills. Exh. 4 at 6.

Ms. 7 testified that she additionally reviewed the educational evaluation conducted by the District’s Ms.

. Exh. 3. Based upon the report, the student was performing at grade level in math and “above expectation” on reading and writing tasks. Tr. at 40. Additional District-wide assessments indicated that 3 had passed all of his classes and had additionally earned Regents credit in Earth Science.

Finally, 1 and 3 completed questionnaires for the 16-3. Significantly, both Parent and student reported relatively good adaptive and coping skills. Although 1’s scores described a clinically child, her responses additionally indicated concerns with problems, 11, attention and withdrawal.” Similarly, 3’s responses evidenced clinically significant negative attitudes towards school and teachers with associated 11, a sense of inadequacy, hyperactivity and attentional issues. Tr. at 43; Exh. 4 at 9.^[2] Both Parent and student reports were largely consistent with each other, both reporting clinically significant 27 and a constellation of at-risk characteristics such as hyperactivity, 11 and off-task attentional issues.

On September 14, 2016 the CSE convened. Based upon the evaluations presented, the Committee determined that 3 was not eligible for special education although 504 plan would remain in effect. Tr. at 44. Nevertheless, aware of 3’s 11 and 9 behavior as well as findings on the 16-3, the CSE specifically recommended a psychiatric evaluation. Tr. at 46.

On October 28, 2016, the child was evaluated by psychiatrist, 17, M.D. Exh. 8. Significantly, both the District and Parents had become increasingly concerned about 3’s escalating non-attendance at school. Indeed, even when present in the building, 3 frequently did not attend class, segregating self in the library or student support room. Tr. at 47. During this time, both District personnel and 1 were in frequent communication in efforts to address 3’s 11 and absenteeism. Several strategies were developed, including the assignment of Ms. 7 as a point person and the continued use of the student support center or library as a “safe” place to retreat when feeling 11 or overwhelmed. Nevertheless, these interventions proved unsuccessful and the student’s absenteeism increased. Eventually, the grade level psychologist, Ms. 19, assumed the role of point person. Tr. at 49-50.

On cross-examination, Ms. 7 acknowledged that the student support room was utilized for students assigned to in-house suspension or detention. In furtherance thereof, 3 reported that there were fights in this room and, on one occasion, a student threw a chair across the room. Alternatively, 3 was permitted to use both the school’s testing center and library as safe spaces during the school day. 3, however, would not be permitted to bring a laptop into the testing center as other students were taking exams there. Similarly, it was explained to 3 that could not remain in the library all day as it was not staffed for this purpose. Tr. at 96-97.

On November 30, 2016, the CSE again convened for the purpose of addressing 17’s report. Based upon 17’s diagnosis of 20, Generalized 11 and an Unspecified 21 , 3 was classified as 6ly . Tr. at 52. Although the report continued to raise concerns about 22 , Ms. 7 opined that 3’s 6 issues had become far more consequential.

Ms. 7 noted that the IEP prepared as a result of the November 30, 2016 CSE deliberations did not address any academic deficits. Rather, it concentrated upon ameliorating the impact of 3’s 6 issues upon educational performance. To that end, 29, integrated math and consultant teacher science classes were recommended as a means of facilitating the organization and planning of assignments, a source of 11 for 3. In addition, individualized 23 services (once weekly for 30 minutes) were formalized along with program modifications (preferential seating, checking for understanding and refocusing and redirection) and test accommodations previously provided within the student’s 504 plan. Significantly, a reintegration plan was additionally developed as was spending more time at home than in school. Although the student continued to complete school work, frequently arriving at the end of the day to exchange old and new assignments, the goal was to increase time spent in school by gradually extending the amount of time spent in class at the end of the day. Tr. at 55-56. The District additionally recommended a screening through 13 at the 14 Middle/High School (hereinafter “14”), an alternative to which 1 did not object. Tr. at 58. Exh. 10. The witness noted that this referral had previously been addressed with the Parent as a means of assuring her that a continuum of services existed. Given 3’s history of 9 behavior, Ms. 7 wanted Parent to know that if the District’s current plan was unsuccessful, there were other options available. Tr. at 57-58.

On cross-examination, Ms. 7 described 3 as a student who was neither disruptive nor aggressive. She further noted that the student was not a disciplinary problem and had no history of suspensions. Referencing 14’s

, she testified that she was unaware of any incidents of inappropriate behavior (i.e .cell phone usage, teasing other students or playing around in the classroom). Indeed, the witness indicated that 3’s teachers reported him as “withdrawn” at times and frequently unprepared. Tr. at 61-63. With regard to 3’s executive function skills, Ms. 7 noted that she had not specifically tested 3 in this area, but that these cognitive features were reflected by other rating scales. Tr. at 63. She did recognize, however, that executive function had been a concern voiced by 1 In sum, the clinician observed that 3 did not exhibit any normative cognitive deficits, although test scores did indicate several weaknesses relative to 3’s exceptional cognitive strengths in other areas. She testified, “ processing speed, although it is within expectation, is much lower than his ability to do verbal reasoning so it caused frustration doing tasks.” Similarly, Ms. 7’s report notes that “[as] learning involves a combination of rote skills and higher-level processing abilities, a relative weakness in processing speed skills can lead to slower mastery and/or a variety of errors when learning new concepts. Tr. at 73; Exh. 4 at 7-8. The clinician observed that these deficits would present challenges in rapid note-taking and scanning novel material. Similar discrepancies were evident in the visual spatial index when compared to 3’s IQ level and sub-tests of fluid reasoning. Tr. at 67-73. As a whole, the witness testified that 3’s non-verbal and perceptual reasoning skills were clearly less developed than verbal skills. Nevertheless, the clinician reiterated that 3’s weaknesses were relative to own test profile and were not weaknesses when compared to the wider testing cohort.

Although Ms. 7 acknowledged that she had not personally visited 14 in eight or nine years, she reported frequent contact with its personnel through annual reviews and CSE meetings. She was unfamiliar with the present profile of 14’s student population but opined that over the past few years the student population now included more individuals suffering from 11 and 9. Tr. at 63-64. 24 additionally testified on behalf of the District. Ms.24 holds a master’s degree in speech pathology and is licensed as a teacher of the speech and hearing impaired. She is additionally licensed in speech-language pathology and holds a certificate in administration. She has been employed by the District since 1995 and became the chairperson of special education in 2008. In this capacity, Ms.24 chaired the September 14, 2016 and September 13, 2017 CSE meetings for 3. Exhs. 6, 29.

Ms.24 acknowledged that over the summer of 2016, the Parents had advised the District of their interest in recommencing classes in District during the 2016-2017 school year. Nevertheless, from October 2016 until February 1, 2017, the .s were unable to get 3 to class. Although the Parents had requested home instruction, Ms.24 indicated that this was not a service provided through the CSE and the Parent was referred to the Office of Special Education. Tr. at 168. Having so testified, she was uncertain as to the details of this plan as this had been the responsibility of the District’s social worker, 25. Ultimately, the issue of home instruction was not pursued. Tr. at 169-170. Instead, on September 13, 2016 the CSE continued to address 3’s 9 through its reintegration plan, despite the Parent’s objection that the plan presumed a minimal level of school attendance which did not exist.^[3]

Although Ms.24 had limited personal familiarity with the student, she did, in fact, review 3’s educational, psychological, social and medical evaluations prior to the CSE proceedings of September 2016. Exh. 7. Among those in attendance, both 1 and 3 were present. Exh. 6. While 3 did not appear eligible for special education at this time, the student’s 504 plan was continued. Tr. at 107. In addition, the Committee agreed that further psychiatric assessment was indicated, given the history provided by the Parent.

On November 30, 2016 the CSE again convened to consider the results of 17’s psychiatric report. Exhs. 8, 9,

10. Based upon 17’s diagnoses of 26 unspecified, 27 and generalized 11 , the CSE unanimously agreed to classify 3 as 6. Thereafter, an IEP recommending 29 (every other day), integrated coteaching (math), direct consultant teacher services (science) and 23 was generated. Tr. at 112; Exhs. 10. In addition, the student’s 504 accommodations and testing modifications were continued. Tr. at 117. The witness indicated that the recommendation for 29 was designed to facilitate 3’s ability to break down long term assignments and to address executive function deficits in organizing and planning school work. Tr. at 115. Ms.24 noted that the student’s present levels of performance were denominated by Ms. 7 and accurately reflected the absence of academic deficits. Indeed, the witness indicated that some of the student’s academic performance even exceeded average expectations. Nevertheless, the Committee recognized 3’s struggles to organize and plan out assignments and addressed this by developing a specific executive function goal. Exh. 9 at 5. As the student did not exhibit any academic deficits, no academic goals were articulated. However, a social/6/behavioral goal was incorporated into the IEP to address 3’s 6 issues.

Most significantly, the CSE developed a reintegration plan designed to facilitate the student’s return to the District’s High School. This was particularly significant as 3 continued to struggle with attendance and had been totally out of the school setting for the last few months of his eighth-grade year. In the interim, the CSE recommended a 13 screening in the event that 3 required more intensive support than could be offered within District. On December 7, 2016, the witness forwarded an educational packet to 31, principal of 14. Exh. 11. In response, a screening date was set up for the student along with a request for additional documentation. Exh. 12. Although scheduled for January 23, 2017, the witness testified that 3 did not attend the screening as reportedly the student refused to go. Tr. at 121.

Thereafter, the CSE convened on February 1, 2017 for the purpose of addressing the aborted 13 screening, developing additional socio-6 supports and discussing the Parents’ cognitive behavioral therapy report from 28, Ph.D. Exhs. 13, 15. At this time, the CSE continued to recommend the 13 screening, incorporating the new “9” diagnosis from Dr. 28 into the IEP and presenting the Parents with information regarding New York State requirements for a diploma and Regents credits. A re-entry plan in which homework would be presented and exchanged for completed assignments was formulated, enabling 3 to access the student support center when overwhelmed by classroom attendance. Tr. at 127. Thereafter, 3 attended a rescheduled 13 screening date on March 13, 2017. Exh. 16.

On March 29, 2017 the CSE again convened. Exhs. 17, 18. A full complement of Committee members was present, including 30, a 14 High School counselor. Exh. 17. Ms. 30 discussed the screening process and the program offered at 14, observing that 3 would be an appropriate candidate for their school. She described a diverse student population at 14, reflecting students with a range of educational as well as social-6 needs. Tr. at 130. She further noted that 3 would receive instruction within an 8:1:1 paradigm along with small group and individual therapy.^[4] In addition, family 23 and training would be offered. As the consequences of 3’s non-attendance had now jeopardized ’s ability to accumulate high school credits, the CSE hoped to address this concern within the new 13 placement. The witness opined that this was an appropriate placement, an opinion she based upon her knowledge of prior students who had attended 14 and their educational/6 profiles. Tr. at 133-134. As a result of these proceedings, the CSE recommended placement at 14. Exh. 18.

testified that the Parents did not object.

On May 24, 2017 an annual review was held. Exh. 19. Although Ms.24 did not chair this meeting, she subsequently learned that the CSE had continued its recommendation for 13.

On September 13, 2017 the CSE again convened for the purpose of reviewing a new neuropsychological report prepared by 32, Ph.D. Exhs. 29, 30. Notably, the Parent had requested a neuropsychological evaluation, a decision with which the District concurred. Thereafter, the District referred the Parents to Dr. 32 and an evaluation was conducted at District expense. Tr. at 142-143. The witness testified that Dr. 32 presented his findings to the CSE and did not offer any objections to the new goals articulated in the IEP document. Tr. at 1121. Rather, Dr. 32 was more concerned with the manner in which material would be presented to 3 so that 3’s executive deficits might be minimized. Ms.24 testified that Dr. 32’s input might be “reflected in present levels of performance. It can be reflected as program mods. It can be reflected as goals.” She noted that the neuropsychologist participated by phone for approximately 45 minutes and was an integral part of the CSE’s planning.

In addition to Dr. 32’s report, the Committee reviewed a report card from 14 reflecting 3’s acquisition of four and one-half regent’s credits in Algebra, English, Global History, Spanish and Studio Art. The witness indicated that no credit had been obtained in Living Environment as the student had not participated in the required labs. Tr. at 136-137; Exhs. 22, 28. Finally, the CSE reviewed a Functional Behavior Assessment (hereinafter “35”) developed at 14 on June 9, 2017, days before the school year’s end. Tr. at 177; Exh. 21.

Referencing the 35, the witness observed that the student exhibited “no overt behaviors” which were preventing him from accessing an education. Tr. at 139. If anything, the student was unable to complete assignments “due to frustrations . . . stemming from his classroom peer associations, perceptions and student interaction.” Ultimately, the 13 clinician did not recommend a behavior plan, based upon 3’s “positive” adjustment to 14. Tr. at 140-141; Exh. 21.

Ms.24 additionally described the participation of Dr. 32. Referencing his report, she noted Dr. 32’s description of 3 as a bright child with some scattered areas of relative weakness. While 3 exhibited superior verbal comprehension skills, his nonverbal reasoning skills fell within average levels. Nevertheless, all academic skills were within or exceeding age expectations. Tr. at 144. In contrast, 3 had clear executive functioning and attentional deficits along with a “disconnect in his ability to connect with individuals.” Ibid. The witness testified that Dr. 32’s diagnoses, to wit: Major 27 , Generalized 11 and 22 were consistent with the District’s observations and knowledge of 3 Likewise, the educational programming developed for 3 included many of the program accommodations and modifications it had already recommended (i.e. preferential seating, check for understanding, refocusing and redirection, testing accommodations and small classes). More specifically, the witness noted that it was important to break down educational materials into smaller components in order to minimize 3’s 11 and facilitate his ability to prioritize, organize and plan work strategies. Tr. at 149. As a result of Dr. 32’s report, the IEP of September 13, 2017 placed a greater emphasis on addressing executive function and 3’s social-6 weaknesses. No academic goals were discussed as there were no academic issues. Tr. at 155.

In furtherance thereof, Ms.24 summarized Assistant Principal, 33’s report, noting that 3 had functioned successfully at 14 as his attendance had improved relative to that demonstrated in District. Similarly, 3 had been able to acquire a number of academic credits towards a regent’s diploma, an achievement facilitated by

13 flexibility with extending deadlines for assignments Tr. at 151-153; Exh. 30 at 1. Despite this, the Parent noted that 3 had already stopped attending classes and was not being challenged academically. Tr. at 153. In response, Mr. 33 indicated that an advanced regents’ diploma could be accessed through online courses at the 14 site. Tr. at 151. Nevertheless, these courses would not be available to 3 until he had finished his required courses. Tr. at 184. Based upon 3’s positive response to the 14 program, Ms.24 reiterated her opinion that the IEP appropriately addressed the student’s academic and 6 needs. She noted that 3 had been able to attend classes and had accrued academic credits towards his diploma. Tr. at 157-158. Having so testified, she noted that the District’s placement was flexible and if 3 developed “a sufficient skill set,” he would be able to return to District. Tr. at 158.

On cross-examination, the witness acknowledged the fact that Dr. 28, the child’s cognitive behavioral therapist had not recommended an alternative setting such as 14, instead recommending a strategy which focused upon, “breaking the cycle of building expectations of being able to participate in a full-time academic setting (even if that setting were an “alternate setting like 14), only to be overwhelmed, retreat, feel defeated and . . . deepening his angry self/other loathing and increased conditioned avoidance.. This is strongly not advised at this time.” Tr. at 172; Exh. 15.

Significantly, Ms.24 acknowledged that 3’s profile was unlike those students who normally attended 14. Tr. at 172. While all students entering 14 were furnished with a behavioral management system largely targeting oppositional-defiant behaviors, she noted that individuals with more severely disruptive conduct disorders were served through the 13 continuum and did not attend 14. Tr. at 172. While students at the District High School were similarly provided with a code of conduct, Ms.24 acknowledged that data was not required or taken for each student. Tr. at 199. In sum, Ms.24 testified that the District had worked intensely with the family and had sought to develop a successful educational plan, having met with the family six times between May 2016 and September 2017. Exhs. 5, 9, 13, 17, 19 and 29.

31 is a certified school psychologist and is currently the principal of 14. She has been employed for more than 30 years in various aspects of special education. Among her duties and responsibilities at 14, Ms. 31 supervises all daily programmatic functions, ensures “rigor and fidelity” in the instruction given and ensures “ongoing therapeutic supports for a variety of different stakeholders.” Tr. at 257-258. There are approximately 120 students at 14. A day treatment program for students requiring the highest level of care is on site at 14; these students are integrated into the 14 student population. Tr. at 324-325.

The witness described 14 as an academic community in which therapeutic intervention is the cornerstone of its program. All personnel are trained on a regular basis to understand the social/6 needs of its student body and to support a therapeutic model. All instructional personnel are certified in both special education and their individual content areas. The school offers both psychological and social work services and utilizes consulting psychiatrists from 34 University. A drug 23 program is offered through the 35 Network while a cooperative relationship with 36 exists for students requiring more intensive psychiatric intervention. Tr. at 259-260; Exh. 25 at 2. 14 adheres to the New York State Common Core curriculum and is a Regents track program. Tr. at 284.

All entering students are furnished with a behavior management plan in which behavior is observed in 15minute increments. Ultimately, students may be released from this requirement if behavior is consistently appropriate. Ms. 31 testified that, as a matter of practice, 14 does not accept students, “who are either highly aggressive or have extreme conduct disorders.” Tr. at 335.

The witness described a student profile which reflected an array of school avoidance issues, some associated with 11, 27 and/or histories of having been bullied. Ms. 31 testified that most of its student population is 6ly fragile and require a great deal of individualized attention in a very small environment. In contrast, she noted that there is a wide range of cognitive abilities within 14’s student population. Tr. at 264. She noted that there are no behavioral profiles for classes and that an 6ly frail or bullied student might be placed in the same classes as an aggressive child. Thus, while she testified that, as a rule, students are not accepted to 14, it was possible that students exhibiting any of the articulated in 14’s Plan would be placed in class alongside 3 Tr. at 327-328. Nevertheless, the witness noted that acts of are controlled by limited access to bathrooms and lockers. Personnel are assigned to shadow cafeteria tables and the high pupil-personnel ratio engenders a great deal of vigilance. Tr. at 326-330.

With respect to the screening process, Ms. 31 described an intensive review of the student’s academic record along with consultations with the District, Parents and student. Moreover, the witness reviews every admissions packet which is sent to 14. Having reviewed the initial packet for 3, Ms. 31 testified that the student presented in a similar manner to those already at 14; further assessment of his candidacy for 14 was, therefore, warranted. Tr. at 267. Exhs. 11, 12, 16. Although a screening was initially scheduled for January 23, 2017, this did not occur, and a second screening was scheduled for March 13, 2017. Among the individuals participating in this second screening were school psychologist and teacher coordinator 30 as well as 34, M.D. consulting psychiatrist at . The Parents and student were additionally part of the admissions process. Tr. at 269. As a result of the assessments conducted on this date, 3 was accepted to 14, an admission formalized by the CSE on March 29, 2017. Tr. at 271-272; Exh. 17. Although she did not participate in the March 29, 2017 proceedings, Ms. 31 opined that the services articulated in the IEP were appropriate for 3 and could be provided within the paradigm offered by 14. Tr. at 272. Ms. 31 then noted that 14 would follow the initial IEP developed in District and would make any necessary amendments following a 25 to 30-day period in which 14 would develop a more intimate knowledge of 3 Tr. at 273.

Referencing the individual and group 23 in which 3 participated with school social worker, 38, Ms. 31 observed that this had been a positive opportunity for the student to share his perspective on his environment and peers at 14. Using cognitive reframing, it was explained that “you may not be able to change the events in your life, but you can certainly change and regulate your 6 response to those things.” Ms. 31 noted that group 23 paradigm was valuable as it gave 3 the opportunity to practice this skill in real time. Tr. at 276.

Ultimately, Ms. 31 described 3’s experience at 14 as a productive one in which the student was generally cooperative in class and completed assignments, although absenteeism remained an issue. At the end of the 2016-2017 school year, 3 received credit for all academic classes except Living Environment as well as credit for the Algebra Common Core Regents. Although his year-end grades were low, these reflected averaged grades from three prior marking periods, most of which included failing grades obtained while in District. Tr. at 278-280; Exh. 22. Similarly, she opined that the student’s attendance had been good given 3’s history. Tr. at 307-308.

On May 24, 2017, the CSE convened for the purpose of developing an IEP for the 2017-2018 school year. Concerned about the previous non-quantifiable nature of certain goals, the student’s social-6 goals were now rewritten with more specific criteria. On September 13, 2017 the CSE again met. At this time, the witness acknowledged that the additional study skills goal was developed at this impetus of District personnel who were concerned about the generic and unquantifiable nature of the 14 IEP. Tr. at 304-305; Exh. V. The witness acknowledged that the CSE should have incorporated a study skills goal but did not do so until the September 13, 2017 convene. Exhs. 19, 29.

At this time, the District asked 13 to perform a 35 on 3 to obtain greater control over the student’s 9 behavior. On June 9, 2017, social worker 38, L.S.W. conducted an 35. Based upon his assessment, Mr. 38 determined that school-based 23 was an appropriate intervention to address 3’s absenteeism and that a behavior plan was not indicated. Exh. 21 at 2. Tr. at 290.

Although the Parents continued to express concern about the lack of intellectual stimulation at 14, Ms. 31 believed 14 was an appropriate placement for 3, noting that there were several online enrichment opportunities of which 3 could avail himself. Tr. at 283. While she opined that 14 was an appropriate setting for 3, she nevertheless was not present at the 14 screening, had not conducted a formal evaluation of the student and had never participated in any of 3’s CSE convenes. She has never met the student’s mother. Tr. at 305.

Referencing the student’s schedule, Ms. 31 observed that 3’s first period would be Academic Intervention Services (hereinafter “AIS”), an opportunity for personnel to check in with the student, assess his academic/social and 6 needs for that day and facilitate the completion of assignments and/or projects. 3 could then use his second period to participate in online enrichment courses in the computer room. Ms. 31 noted that these online classes were the same courses utilized by the individual districts themselves and reflected the same level of academic rigor. Tr. at 291-293.

On cross-examination, Ms. 31 described the manner in which the computer room operates. There is one teacher and one paraprofessional assigned to the room which might have several students working on independent and individualized programs. As there are no advanced placement (also known as “AP”) classes, this opportunity must be accessed online. Tr. at 300.

Ms. 31 further acknowledged 3’s disappointment with the level of academics presented in the classroom. He was, in particular, frustrated by the behavior of his classroom peers as well as the class time spent reading aloud paragraph by paragraph rather than discussing the materials. Tr. at 302-304. In fact, the witness was aware that 3 had articulated these concerns to his counselor.

37, Ph.D. additionally testified on behalf of the School District. Dr. 37 holds a Ph.D. in clinical psychology and is licensed by New York State as a clinical and school psychologist. She has extensive experience working with the CSE in various administrative and supervisory positions. Having retired in 2016, she now serves per diem for the District, chairing CSE/CPSE meetings and consulting with staff. Tr. at 338-339.

On May 24, 2017 Dr. 37 chaired a CSE meeting for 3 Although she had never met the child, she reviewed the most recent IEPs and evaluations from 3’s file. Twelve individuals participated in the CSE convene, including the student, himself. Exh. 19 at 15.

At this time, Dr. 37 indicated that the Parents were pleased with 3’s transition to 14 and the academic progress he was making. Tr. at 342-343; 346. Nevertheless, the Parents were concerned that 3 was not being challenged academically. In furtherance thereof, Dr. 37 reported an extensive conversation addressing higher level academic options for 3 and online courses in such subjects as astronomy, psychology and sociology. Tr. at 342-345. While the student expressed a desire to simply finish ninth grade, he did note that he would feel more comfortable if his classes were more demanding.

A secondary concern involved 3’s ability to tolerate the disruptive students in the classroom. Tr. at 354-355. With regard to 3’s acceptance of disruptive students within the classroom, the witness reported that Mr. 38 was working with the student to increase 3’s patience with “learning differences.” Tr. at 354-355.

As a result of the CSE’s deliberations, a Prior Written Notice was issued, recommending 3’s continued placement at 14 along with a neuropsychological evaluation of 3 Exh. 20. In addition, the District approved a Functional Behavior Assessment to offer insights into the causes of 3’s 9 behaviors. As the student did not exhibit any academic deficits, Dr. 37 testified that study skills goals were unnecessary, a conclusion based upon reports shared at the CSE, prior academic testing and input from his special education teacher. Tr. at

348. Dr. 37 further acknowledged that there was no discussion as to the need for goals related to 3’s executive function deficits. Similarly, there were no goals addressing 3’s struggles to maintain relationships with peers and adults, although these needs had been articulated within the IEP document. Exh. 19 at 2. Tr. at 351-352. Nevertheless, the witness testified that she had no reservations about the appropriateness of 14’s program for 3 Tr. at 349. The Parents’ Case 39 has a doctoral degree from 41University in gifted education. She is permanently certified to teach grades K through 12, as well as secondary special education in English. Ms. 39 has more than 20 years of experience in the field of special education and is the founder and Head of the 5 (hereinafter “5”). Tr. at 397-403. Instruction at 5 is predicated upon the notion of providing services to students deemed “42” to wit: children who are highly capable or gifted cognitively but who additionally suffer from learning impairments reflecting a wide range of disabilities.5 These might include physical or visual issues, language disabilities such as dyslexia or executive function deficits. As a result, there is a disconnect between the child’s high cognitive ability and his actual ability to function at a similarly high academic level due to various learning disabilities or deficits. As this occurs, the student becomes increasingly 11 and depressed as he/she cannot understand why they are not successful, despite their best efforts. Although many students may be

5 Although the witness noted that measures of IQ were considered, 5 assessed its candidates with a more global approach, seeking out specific capabilities and weighing them against wide sub-test discrepancies. Tr. at 476-479. characterized as 42, the School does not accept children with schizophrenia, 36olar disorder or extreme aggression. Tr. at 428. There are five and one-half students presently enrolled at 5.^[6]

Dr. 39 affirmed that although clinical services were provided to its students, the School is not a “therapeutic” school as it does not accept students who exhibit a higher level of need and require medication to control their behavior. Tr. at 490-491. Nevertheless, psychological services are available. Specifically, 3 receives individualized 23 twice a week. Although 3 originally resisted 23, the student eventually began to see 5’s psychologist once a week. Eventually, an additional period was added at the request of the student. Tr. at 494-495, 503. 3 additionally receives a social cognition class, reflecting struggle to apply an abstract and intellectual understanding of social scenarios to an 6 reality. Exh. E at 14.

The witness testified, “When students are at the point of needing a school like 5, “. . . their self-esteem is shot . . . Their trust is gone. There is no trust for teachers, adults, administrators. They have really built up a defense mechanism against everything they have experienced prior to this . . . They have experienced a lot of rejection and negativity as they see their classmates always being praised and they work as hard as they can, and they can’t understand; no matter how hard they are working they are constantly being picked on or pointed out as being wrong ultimately.” Tr. at 409. As a result,^[5] focuses upon the social-6 component experienced by gifted children whose 11 and severe 27 have prevented them from thriving or even functioning appropriately within the classroom. Tr. at 404-407. The School’s mission is to identify the underlying issues associated with a child’s 42 status and to provide the individualized instruction and support necessary to facilitate learning in a non-judgmental, “personal best” environment. Tr. at 408-410. In furtherance thereof, a clinical team includes a clinical psychologist and speech pathologist whose area of expertise is social cognition and pragmatics. Tr. at 421.

7 Makerspace is a technology driven program which provides hands-on opportunities to develop creative and functional design structures. The witness testified that, although 5 adheres to the Common Core curriculum, its instruction is supplemented by project-based assignments which tap into a student’s interests and strengths in an effort to trigger internal motivation. Additionally, 5 utilizes a STEAM/STEM8 orientation in which external relationships (i.e. Brookhaven National Laboratories, Cold Spring 10DNA Center, Cradle of Aviation Museum) enrich the 5 curriculum. Although Dr. 39 recognized that a health program was a requirement for a New York State diploma and acknowledged that 5 did not presently offer this, she indicated that the school is actively developing a program. Tr. at 489.

Traditional grades are not issued until a fundamental level of trust is established between teacher and student. Many of 5’s teachers have been employed as experts in their field, having previously worked as engineers, pilots, environmentalists etc. Although some teachers are not certified, they possess a skill set which specifically includes patience, empathy and creativity in addition to substantive knowledge of their content area. Tr. at 418, 420. Dr. 39 noted that every afternoon a “debrief” of its students is conducted by School personnel. At this time, the clinical team assess the student’s day and develop an academic-social/6 strategy for the following day. This is supplemented by weekly case management review on Fridays. During these meetings, the School’s special educators serve as a bridge between the student’s clinical and academic needs. In this manner, personnel are able to accommodate the student’s learning style so that a sense of competency is developed. Tr. at 425-426. A monthly conference call is made with 5’s psychologist, 3’s Parents and community psychologist, 40, Ph.D. Beyond this, weekly reports based upon daily teacher/course journals are sent home. Finally, report cards reflect a portfolio-based assessment of the student’s progress. Dr. 39 testified that 5 is really focused on behavioral and social-6 changes such as the ability to tolerate academic risks as opposed to achievement and academic strength. Mastery of the substantive course content is of secondary import. Tr. at 453-454.

Dr. 39 described 3 as a bright, “deep-thinking” who did well in science and math but demonstrated greater strengths in philosophical thinking; seemed to “carry the weight of the world upon shoulders.” Tr. at 429-430. The witness testified that 3 did not feel safe in school and felt betrayed by personnel. Although is a compliant, non-rebellious perfectionist, 3 could not understand why was low-achieving9 and 8 Science, Technology, Engineering, Arts and Math

9 Relative to cognitive abilities unsuccessful in school. This had led to significant 11 and 27. 3 struggles to connect socially and is hampered by poor social cognition and an inability to read social cues. Although now has relationships with adults, the student remains traumatized by the personal betrayals and bullying has previously experienced and has little interest in venturing into “the social landscape.” Tr. at 535.

In September 2017, 3 was enrolled at 5. At the outset, 3 was very suspicious of the School and its personnel, leading to frequent absenteeism and lateness. While 3 initially attended classes approximately 38% of the time, by November that number had increased to approximately 50% and at the time of hearing, the witness indicated that 3 was demonstrating 90% attendance. Tr. at 440. Nevertheless, Dr. 39 acknowledged on crossexamination that the student frequently “took classes” at 5 outside the room in which the instructor was teaching. Tr. at 501. Finally, although the student’s early attendance record did not suggest any improvement, the witness testified that behavioral changes had been observed in school. Tr. at 512-517; Exh. 33.

3 is now taking an accelerated program in English, an honor’s level biology class and Regent’s classes in geometry and global history; the student excels in mechanics. Tr. at 441. 3’s success with vocabulary tests has engendered a sense of confidence which has translated into a tolerance for tightly structured scaffolding with writing assignments. Although unable to write essay or expository pieces at the beginning of the school year, 3 is becoming more comfortable with these assignments. Tr. at 457-458. As a result of 3’s de-escalating 11 and 27, the student has demonstrated a greater willingness to take risks, academic and social. Tr. at 442443.

Referencing the 14 behavior management plan, Dr. 39 testified that this was an inappropriate support for 3 She noted that 3 is motivated by academic rigor; being deprived of a class trip would be meaningless to the student. Tr. at 466-467. Similarly, she opined that the study skills goals articulated in the September 13, 2017 IEP were inadequate as 3 required far more than moderate levels of teacher assistance. Exh. C. at 12. Rather, 3 required a full array of supports which addressed both executive and sensory issues. Tr. at 468. The witness additionally disagreed with the IEP’s recommendation that the student’s social dysfunction be addressed through a 36. Tr. at 470-471, 608; Exh. C at 10. She observed that 3’s deficits reflected impairments in social cognition and his inability to interpret the world around Tr. at 471. She testified, “[ ] doesn’t need that kind of behavior modification. needs an understanding of [an] environment where is allowed to be , not feel people are targeting criticizing . . .” Tr. at 471-472. Nevertheless, Dr. 39 has had no direct experience with 13/14, has never visited the 14 site and did not communicate with 14 personnel in conjunction with the 5 admissions process. Tr. at 504-505. She had, however, spoken with District personnel and was aware that 3 had been referred to 14 following significant attendance issues at the District’s High School. She additionally learned that following the student’s transfer to 14, he acquired four and one-half credits for the 2016-2017 school year.

The witness additionally opined that the IEP generated by the District was a generic document which did not address the specific psycho-social, executive function, short-term memory or sensory processing needs of 3 Tr. at 525-527; Exh. C., passim. While she noted that study skills and graphic organizers were helpful, she believed 3’s challenges were more significant, adding that these interventions would not address the psychological issues which prevented 3 from attending class. Tr. at 530. The witness additionally observed that 3 required a environment which minimized distraction as a means of accommodating his executive and sensory processing issues. Similarly, she concluded that many of the repetition, refocusing and redirection accommodations did not address the root of 3’s problems and were reactive interventions which were only relevant after the child had already failed to absorb the materials. Beyond the educational implications, Dr. 39 underscored the 6 impact of having 3’s academic shortcomings repeatedly demonstrated to the student via repetition, refocusing and checking for understanding. Tr. at 531-534; Exh. C. Nevertheless, the witness acknowledged that these strategies would be appropriate for a child with 22. Having so testified, the witness opined that 3 did not present as a typical student with 22 although she accepted Dr. 32’s diagnosis. Rather, she viewed 3’s distractibility as sensory-related. Tr. at 555-556.

Dr. 39 further opined that the cognitive-6 approaches delineated in the student’s IEP anticipated 3’s verbalization of a negative emotion. The witness testified, however, that, “. . . often 3 doesn’t realize what is happening at the time to him. We have charts to ask them to recognize before they get to a certain point. Recognize when you are starting to get 11. Some students just can’t do that at the beginning. They need tools to be able to do that . . .” Tr. at 553. She further disagreed with the IEP’s determination that 3 was confident in his academic abilities. In fact, Dr. 39 opined that 3 internally recognized cognitive strengths but had convinced self that was unable to perform, given a negative history of school failures. Tr. at 538.

In sum, Dr. 39 testified that the Parents had worked collaboratively with the school, had followed whatever suggestions 5 had made and had communicated openly with personnel. She believed 5 was an appropriate placement for 3 40, Ph.D. holds a doctoral degree in psychology and is a registered and board-certified art therapist (“ATRBC”). She is additionally licensed in creative art therapies (“LCAT”) and has an extensive background in providing art therapy within group and individual settings. Tr. at 563. In her private practice, services are offered in an “open studio” paradigm which allows individuals to work creatively with art materials or to simply sit comfortably in a “family room” setting. Through creative expression with various media, clients are encouraged to engage in therapeutic dialog with therapists. Tr. at 614. Dr. 40 has never worked in a public-school setting, nor has she has never spoken to anyone from the 13/14 program. She was unaware of any 13 student profiles other than the ones generated by 14 itself. Tr. at 629.

Dr. 40 has known 3 since age six. At this time, the child’s pre-school teacher had expressed concerns about the child’s ability to transition to first grade. The witness described 3 as a respectful and intelligent child who struggled with peer relationships. Because their was sensitive and eager to please, she advised the Parents to work collaboratively with 3 in terms of establishing boundaries, rather than resorting to punishment. Tr. at

576. After six sessions, Dr. 40 concluded that ongoing services were unnecessary, and her treatment was terminated.

In middle school, 3 was again referred to the witness by the school counselor when the student’s executive function and sensory deficits had become prominent issues. Specifically, 3 struggled with finishing and organizing homework assignments and was unable to tolerate the noise or rowdiness of students in hallways. As a result, 3 was experiencing significant 11 and was additionally angry with Parents who were in28ng he continue attending classes. Tr. at 579-580. Treatment resumed at this time and has continued on a weekly basis until the present. One of Dr. 40’s therapeutic goals is for 3 to self-regulate his emotions and, “not be so reactive, to be able to take self more lightly.” Tr. at 584.

In August 2016, aware that 3 would be transferring back into District for ninth grade, Dr. 40 wrote a letter of introduction to the District, providing a clinical context for 3’s imminent articulation into high school. Tr. at 585; Exh. F. Her specific purpose was to advise District personnel as to the student’s 6 and academic needs as he transitioned back within District. Tr. at 620. Although 3 would be placed in a larger classroom, both 3 and Dr. 40 were optimistic that the wider range of educational and social opportunities afforded by the High School would facilitate the student’s successful reintegration. Tr. at 622. The witness indicated that no response was forthcoming to her letter. Ultimately, 3 was never able to attend full-time classes, struggling with both social and sensory issues.^[10] While the student was initially permitted to visit the library when feeling overwhelmed, this option was eventually removed. Thereafter, 3 was referred to the student support center, a location Dr. 40 described as a “detention center where kids were in trouble.” Tr. at 587. Despite the District’s effort to offer student support services, 23 and a truncated day, 3 rarely attended class.

In retrospect, the witness opined that 3 required greater support to acclimate successfully within the high school environment, suggesting that a point person or mentor might have facilitated the transition from home school to public high school. Tr. at 624. As 3’s 9 accelerated, the student’s graduation from ninth grade was jeopardized and, in desperation, the student and his family agreed to consider the 13/14 option Tr. at 626-627.

At this point, Dr. 40 learned that the District had recommended the 14 program for 3, a program about which both she was initially optimistic. As Dr. 40 had limited knowledge of the 13/14 program, she believed the Parents should, at least, consider this alternative, hoping that even if 3 bonded with only one teacher or student, he would be intrinsically motivated to attend school. Tr. at 590. As a result, she testified that the Parents felt positive about 14’s potential. Having so testified, Dr. 40 noted that the District did not offer educational options other than 14. Specifically, she was aware of a 13 program in the arts where 3 might have been screened. Similarly, there was no consideration of half-day programs in which L.B would return to District for part of the day.

Ultimately, 3 was accepted and enrolled into the program but immediately exhibited 9 behavior and nonattendance. The student reported that his classmates behaved aggressively in class and were insulting to teachers who were unable or unwilling to assert control. Tr. at 591-592. 3 complained that his peers did not really want to be in school and classroom discussions were minimal, if at all. Beyond this, 3 reported that he wasn’t learning anything. Nevertheless, he soon realized that if he did not attend classes, he would not graduate from ninth grade. Desperate to leave 14, 3 made a determined effort to learn the materials at home and come to school. When “pushed to the fire (sic),” 3 attended 14 and received credit for his ninth-grade year, although Dr. 40 opined that doing so placed 3 at greater risk for more significant 6 decompensation as his 11 and 27 escalated. Tr. at 627-628, 639-640. Moreover, the student’s “decent grades” merely upset him, given his view of 14’s lack of academic rigor. Tr. at 592.

During this time, Dr. 40 testified that she and 3 had ongoing discussions about 14 and she was aware of his inability to tolerate the 13 setting. Ultimately, she described a “contract” with the student in which the Parents would not insist that 3 return to 14 if, in return, he would complete the ninth grade, underscoring the fact that graduation criteria included attendance. The witness noted that 3’s cooperation was critical as, at this age, it would be physically impossible to force him to attend classes. Tr. at 593-595.

Referencing 14’s behavior management plan, Dr. 40 testified that the target behaviors were irrelevant to 3 who was not disruptive or oppositional. Beyond this, she did not believe a point system would work as the student is internally motivated and responsive to reason. Tr. at 596-599. While Dr. 40 agreed with the management needs articulated in the September 13, 2017 IEP, she disagreed with the manner in which these needs would be addressed. Tr. at 611; Exh. C. at 10. Similarly, Dr. 40 opined that the social-6 goals were premature as 3 was not able to self-reflect or demonstrate insight beyond the existence of his 11. Ultimately, the witness testified that 3 needed “to reestablish his trust in a school which could deliver a satisfying learning experience for him to thrive educationally.” Tr. at 612-613.

In September 2017, 3 started 5. At the outset, 3 continued to exhibit the same 9 behaviors as those evidenced at 14. The witness described a “rough” beginning in which 3 was suspicious of personnel, hyper-vigilant about not being hurt again and averse to communicating with 5 staff. As a result, the witness participated in frequent and ongoing team conferences in an effort to facilitate 3’s transition. Tr. at 600-601.

As time elapsed, however, 3 began to develop more trust with 5 personnel and felt increasingly comfortable about attending class. Ultimately, 3 began attending classes on his own volition. As time elapsed, moreover, Dr. 40 observed significant 6 improvement and testified that 3 would no longer qualify for a diagnosis of major 27. Tr. at 602. Similarly, 3’s 11 was reduced, and regressions were less intense and shorter-lived. Finally, the witness testified that the student was significantly more insightful about his behaviors and was now hopeful about the future, trusting the educators at 5 and feeling safe in their environment. Tr. at 602-603. In sum, Dr. 40 testified that, at the present time, 5 was an appropriate placement for 3, although she hoped that 3 would eventually transition into larger classes and a larger school. Tr. at 607, 638-639. 32, Ph.D. holds a doctoral degree in psychology and a postdoctoral certificate in neuropsychology; he has additional training in cognitive behavioral therapy. Dr. 32 is board certified in school psychology and licensed to practice as a psychologist in New York. The witness has been employed as a school psychologist in various public schools and has maintained a private practice since 2002 where he concentrates exclusively on performing neuropsychological evaluations. He maintains multiple professional associations and has extensive experience in the field. Tr. at 718-723.

In July 2017, Dr. 32 performed a neuropsychological evaluation of 3 Exh. E. At this time, the witness was unsure as to whether 3 would continue at 14. Although the Parents had liked 14’s small size, Dr. 32 was aware that they had concerns about the program. Tr. at 858-859. For this reason, the psychologist viewed part of his role as facilitating the Parents’ placement decision in a “data-driven manner.” Tr. at 860.

The witness described a significantly depressed and 11 child who questioned the value of living but was not suicidal. 3 described himself as the living embodiment of “Murphy’s Law” and expressed ongoing feelings of dread, presuming the occurrence of negative outcomes. To this end, the witness noted that the student evidenced cognitive distortions common in 27 along with predictions of disproportionate and catastrophic consequences for minor mistakes.^[11] Tr. at 726. Finally, Dr. 32 described a student with low self-esteem who criticized himself sharply even when objectively performing well. Tr. at 727.

Extensive testing was conducted over several days. The assessment procedure included Parent interviews, a review of reports/letters from prior providers and the March 29, 2017 IEP. Tr. at 853; Exhs. 17, C at 4. Dr. 32 noted that measures of verbal ability12 on the 43 -Second Edition (hereinafter “43II),^[13] reflected gifted verbal abilities while non-verbal skills were significantly lower, falling at the mid or upper half of the average range. Although 3’s non-verbal skills fell within the normal range, they were highly discrepant from the verbal scores. In fact, Dr. 32 testified that, “the magnitude of that difference is seen in less than percent of the population. It is a huge difference.” Tr. at 733, 735. Consistent with this discrepancy, the witness noted that 3’s scores yielded evidence of a marked impairment in his ability to learn visual content, a score falling at the percentile. Tr. at 764-765. Having thus testified, Dr. 32 noted that 3’s impairment additionally

12 3’s verbal scores fell at the percentile reflected the ability to store information into memory. Once stored, however, 3 was able to retain it. Tr. at 766.

As a result of 3’s disparate abilities, Dr. 32 opined that 3 would need intellectually challenging material which was, nevertheless, supported by considerable special education scaffolding. Dr. 32 observed that for a student such as 3, it was difficult for him to understand why he could comprehend certain materials at an advanced level, but then struggle with applying this information. Thus, 3 would expect the same level of performance with verbal tasks as those which are non-verbal, becoming frustrated when the outcomes were so discrepant. Dr. 32 noted that the sense of frustration which accompanied this dichotomy would only be exacerbated by 3’s perfectionism and self-criticism, attributes which only led to additional avoidance and procrastination. Tr. at 766, 797.

As a practical matter, therefore, Dr. 32 testified that “3’s comprehension is going to be greatly accelerated when the information is presented in language form: when things are spoken to him, when he is reading, when he is allowed to talk it out, to have a conversation about it. And his learning is not going to be as good if the information is presented in highly visual form like visual aids, diagrams, pictures and things like that.” Tr. at 749-750. Thus, classroom instruction which frequently switched from verbal to visual presentations would be challenging for 3 Where possible, the witness recommended that 3 be presented with languagebased instruction in the form of reading or writing. Conversely, when it was necessary to process visual information, Dr. 32 recommended the use of supporting language to facilitate his understanding of visual information. Tr. at 750-751.

Referencing 3’s executive function, Dr. 32 concluded that the student has always had an attention problem, which was now exacerbated by 11 and 27. In the course of testing, the witness noted that 3’s attentional dysregulation was repeatedly evidenced through the student’s losing track of what he was doing, forgetting directions, making careless errors and becoming increasingly distracted as material became more challenging. Tr. at 769. 3 additionally demonstrated clear deficits in his ability to self-monitor and organize his thoughts.

Beyond this, measures of auditory attention, impulse control and memory as measured on the 44-2 hereinafter “NEPSY”) yielded several scores at the percentile. Tr. at 756; Exh. E at 23. As materials became more challenging, Dr. 32 observed that 3 became more frustrated and overwhelmed, leading to 6 and behavioral shut down. Additional measures of executive function in the 45 Twenty Questions and 46 subtests, yielded similarly depressed scores. Tr. at 761; Exh. E at 9-10. As a result of his testing, the clinician opined that instructional modifications which supplemented visual presentations with language was an “absolutely crucial” modification. Tr. at 760.

3’s test profile additionally reflects an individual whose processing abilities are readily overloaded. Thus, 3 would recall far less information following a five-minute presentation than his typically functioning peers. Tr. at 761-762. The witness reported that 3’s working memory shuts down when presented with a lot of information simultaneously, a clinical feature measured by the 47 Test- Children’s Version (hereinafter “47”). As a result, 3 would require the presentation of materials “in small parts with pauses in between for him to consolidate/digest the information and that information be repeated.” Tr. at 762-763; Exh. E. at 10. As 3 exhibits attentional issues along with perfectionism, the student can easily get stuck on one portion of the presentation, compromising his ability to comprehend the rest. This then leads to frustration and 27.

While Dr. 32 observed that 3 has an extraordinary ability to form concepts, he also struggles to organize, prioritize and plan materials at this same level of skill. As a result, 3 struggles to organize, group and outline information when storing details into memory. Tr. at 768-769, 776. Similarly, Dr. 32 referenced 3’s reading and writing skills, which reflected executive function deficits although scores fell at the mid-average range. Again, although these scores were clearly within the standard range, they were widely disparate when compared to 3’s native verbal abilities. Tr. at 771-772. Notwithstanding all the above, even with the moderating effect of 3’s non-verbal scores and deficient executive function, Dr. 32 testified that 3 would be considered gifted by any standard.

Dr. 32 additionally assessed 3’s social personality and 6 function, noting that the student had a long history of difficulty reading social cues. In furtherance thereof, he observed that 3 did not meet criteria for autism but evidenced a “disconnect” between understanding what people are thinking and understanding how they feel. Beyond this, 3 demonstrated “chronic to marked 27 and 11 as well as paranoid and narcis28c personality traits.” Tr. at 781; Exh. E at 27-28.

In sum, Dr. 32 opined that 3 was a 42 child as he was an intellectually gifted student who simultaneously struggled with executive and 6 deficits. Tr. at 790. As a result, he believed the student required challenging materials presented in context with various special education accommodations and modifications. Tr. at 791792; Exh. E at 17-21. Dr. 32 then denominated a series of accommodations which he believed were critical to 3’s ability to function appropriately within the school environment. These included real-time monitoring of work, appropriate pacing, scaffolding, repetition, chunking, annotation and an emphasis on citing textbased evidence to support answers.^[14] The latter was particularly important as 3 frequently made careless mistakes and missed important details.

On an 6 level, the witness believed 3 should be assigned to a 1:1 mentor with whom he could consult daily. In the absence of these interventions, the witness described a child who would easily become depressed, sleepless, 11-ridden and 9. Ironically, Dr. 32 noted that 3’s test phobia had even interfered with the psychologist’s own assessment, causing 3 to abruptly terminate the evaluation process. Tr. at 794. Thereafter, a separate 23 session was devoted to addressing 3’s 6 status before evaluations resumed. Tr. at 729, 735-736.

On September 13, 2017, Dr. 32 participated in an CSE convene for 3 at which time he presented his report. The witness testified that 14 personnel participated in the meeting and assured him that they were implementing the recommendations from his report. In fact, Dr. 32 noted that 14 was only following some of his less important recommendations, those which are found most generically in special education IEPs. Exh.

E. at 21. However, they were not following the most fundamental and important recommendations articulated in the first part of his report. Tr. at 813. Moreover, Dr. 32 expressed concern that 14’s population did not include 42 students. When queried about the enrollment of 42 children, 14’s principal responded that its school had “intelligent” students. The witness was further disturbed by a 14 teacher who described 3 as a child who understood concrete materials, but struggled with abstract concepts, a description entirely contrary to 3’s profile. Tr. at 813-814.

Dr. 32 noted that 14 offered a description of its program during the proceedings and, based upon their presentation, he concluded that the 14 placement was not appropriate for 3 Tr. at 815, 821. At the outset, he opined that the student required a smaller setting than their 8:1:1 paradigm, reiterating concerns about the IEP and school/class profile. Moreover, the witness did not believe 3 had been placed with any similarly profiled 42 students. Finally, Dr. 32 did not believe the use of a behavior plan, the centerpiece of 14’s program, was appropriate for 3 as the student did not manifest dysfunctional and externalized behaviors. Rather, 3’s issues reflected internal struggles (i.e. 27, 11, distractibility, cognitive disorganization), none of which were relevant to 14’s 36. Tr. at 815-819. Moreover, the witness noted that the external incentives offered as part of 14’s behavior plan were actually aversive to 3 The student is motivated by higher level academic achievement and the sense of competency it instills.

Referencing the student’s September 13, 2017 IEP, Dr. 32 opined that there were several errors with regard to 3’s cognitive abilities. While the IEP notes that “3 has average auditory and visual memory skills,” this was inaccurate. In fact, Dr. 32 noted that the student’s auditory memory recall fell at the percentile, a clear deficit for any individual. Likewise, 3’s visual memory skills fell at the percentile, a seriously deficient score. Tr. at 821-822; Exh. C at 8. The witness further disagreed with an IEP statement indicating, “3’s social difficulties have resulted in behaviors that require a classroom behavior management system and/or individual behavior plan in order to enable him to be successful in the school environment.” Tr. at 834-835. Specifically, he noted that 3’s 6 issues were internally directed; his 11, sadness, sense of being overwhelmed were incompatible with the 36 proposed by 14.

Although the IEP accurately described the student’s organizational and planning weaknesses, the witness opined that it did not address 3’s distractibility, poor self-monitoring and difficulty absorbing “fact-dense” subject matter. Exh. E. at 10. Again, while the document did note that 3 might miss key words and subtle details when reading, Dr. 32 believed that the relevant comprehension component was marginalized by this phraseology. Similarly, he observed that the IEP’s description of 3’s writing needs failed to underscore the student’s inability to integrate thoughts into both complex sentences and essays. Tr. at 823. Although Dr. 32 did not expect the IEP to be an “all-encompassing document,” he noted that salient details were not included. Significant omissions included the fact that reading comprehension was well below expectations and that 3 made careless errors which compounded his comprehension deficits. Tr. at 882.

Reviewing the student’s goals, Dr. 32 opined that 3’s deficits in executive function had not been addressed. In furtherance thereof, he delineated a series of strategies which would facilitate the child’s ability to organize and comprehend fact-based materials, compensate for deficits in visual learning and support 3’s ability to write complex, coherent essays. Tr. at 830-834. The witness, moreover, disagreed with the IEP’s conclusion that 3 required moderate levels of teacher support, opining that 3 required a great deal of assistance conceptualizing and defining the tasks at hand. Ultimately, however, Dr. 32 was concerned that the IEP did not recognize the special needs exhibited by a 42 student such as 3 Rather, the document described 3 as “bright,” without addressing the significant, discrepant cognitive skills which were the source of much 6 stress. With regard to 3’s social/6 goals, Dr. 32 testified that the IEP presumed the student would be in school in order to achieve these objectives. Moreover, given 3’s inability to self-assess rationally, goals addressing the formulation of negative thoughts were simply too broad, neglected their psycho-social underpinnings and ignored the importance of 3’s distorted thinking. As many of 3’s thoughts were hyperbolic/catastrophic in nature,^[15] the clinician believed the student would instead benefit from cognitive restructuring. Tr. at 825-829. Finally, Dr. 32 questioned the value of a goal which seeks to maintain acceptable school behavior when there was no question as to the appropriateness of 3’s behavior in school. Tr. at 829-830; Exh. C at 12. In sum, the witness believed 3’s IEP goals inadequately addressed his deficits as they omitted certain recommendations and over-generalized others. Tr. at 883. He testified, “I don’t recall ever seeing a student in a self-contained environment with three goals . . . so to have that level of need and only have three goals is very scant.” Tr. at 884-885.

Finally, Dr. 32 testified that 5 was an appropriate placement for 3 based upon his discussions with Dr. 39, Dr. 40, school personnel and a site visit in which he observed a highly individualized instructional program. Tr. at 836-839, 844. He observed that personnel were sensitive to the 6 needs of 5’s students and little pressure was placed upon students to perform until they were ready. In 3’s case, academic demands only escalated as the student acclimated to his new environment and became more trusting of personnel. Tr. at 894. 5 utilizes a range of special education strategies which support 3’s executive, auditory and visual memory deficits while enabling the exceptional aspects of his cognitive profile to thrive. Instructional materials are frequently selected by the students themselves, a programmatic element Dr. 32 believed was critical for 42 students. In this manner, 3 was given control and ownership over the educational choices he made, allowing him to pursue his interests while accepting responsibility for completing assignments associated with those interests. Tr. at

839. When 3 was overwhelmed, the student could work remotely using Google Docs in school but in a different classroom. Dr. 32 testified that he observed, during his one-hour site visit, that his recommendations were implemented in a student-specific manner.

The witness further noted that 3 had developed a 1:1 mentorship with one of his teachers and avoidance behavior had decreased; 3 is now attending classes more frequently and is more amenable to experiencing uncomfortable social and educational situations. He has additionally learned to self-advocate without deprecation and negative self-talk. Tr. at 840-841. As 3 is sensitive to sensory overload,^[16] the intimate size of 5 is currently an asset.

Finally, the student is learning to function more appropriately through social cognition intervention. Dr. 32 testified that this was a clinically significant improvement, as 3 had gone “from hiding in the closet [following the presidential elections] to greeting a stranger.” Tr. at 841, 878. In sum, the witness opined that at 14, 3’s sensory overload would exacerbate his 6 fragility; the student would simply view the 14 placement as a punitive measure, even if given the opportunity to take on-line courses.

On cross-examination, Dr. 32 acknowledged that 14 never saw 3’s Neuropsychological Report and, therefore, never had the opportunity to integrate its recommendations into their program. Tr. at 862-863. Although Dr. 32 has never visited 14, nor does he know any of its staff, he nonetheless did not believe 14 could offer an appropriate program for 3 In furtherance thereof, he opined that the 8:1:1 program exceeded 14’s capacity to implement the recommendations articulated in his report.

Similarly, while acknowledging that 3 had acquired 4 and ½ credits towards his ninth-grade year, Dr. 32 testified that the appropriateness of a placement decision could not rest exclusively on the issue of credit acquisition. To this end, factors such as “the student’s 6 state; his attendance; the IEP goals; the student’s needs; the student’s executive functioning development in reading, writing and math . . . the student’s history” were integral to the determination of appropriateness. Tr. at 895. Thus, even while obtaining academic credits, Dr. 32 believed 6 issues such as 27 and 11 could be mitigated or exacerbated by environmental factors such as placement. Tr. 871. In the matter at bar, the witness opined that 3’s 9 and 6 status further deteriorated following his experience at 14. Finally, Dr. 32 believed repeated exposure to disruptive students as a means of developing 3’s frustration tolerance was an inappropriate strategy for an 6ly frail student. Thus, just as other disabilities are accommodated, Dr. 32 believed 3’s educational environment should be modified to minimize the 11, 27 and sensory overload he experienced. Tr. at 876-877.

1 is the child’s mother. She provided a brief psycho-educational history of 3, noting that he has been known to the District since early intervention and pre-school. Although her son did not have his first word until age two, he possessed a vocabulary of at least 100 American Sign Language signs. Thereafter, the Parents observed occupational therapy issues in addition to social issues for which they began therapy with Dr. 40. 3 improved after a brief period of intervention with Dr. 40 and services were discontinued.

Thereafter, 3 attended a local 8 school. At this time, 8 personnel continued to observe certain fine motor deficits along with an excessive amount of “moving around the classroom” and inappropriate social behavior. Tr. at 962. Aware of these issues, the Parents requested an evaluation prior to commencing first grade within District. As a result of these assessments, 3 received Section 504 accommodations and was accepted into the District’s “Investigate” program, a program for intellectually gifted students. From first grade through sixth grade, 3 remained in the gifted program, supported by a guidance counselor with whom he had developed a positive relationship and the school principal who had assumed the role of 3’s mentor. Tr. at 966-967. The Parent testified that 3 performed well academically during this time and was able to develop friendships with other students in the program.

Nevertheless, 1 testified that she began to observe minor indices of 11 towards the end of sixth grade. By seventh grade, the student’s progress began to spiral downward dramatically.^[3] was unable to keep up with course work, was very disorganized, nearly failed social studies and struggled with the sensory overload of large classes and busy hallways. As the child’s 9 behavior,^[17] 27 and 11 began to escalate, the Parents sought out the services of Dr. 40 again. The Parents additionally reported that 3 was being bullied. Tr. at 978-980. By March or April of seventh grade, the Parents believed 3 was deriving minimal, if any, benefit from the educational services offered by the District and, in the spring of 2015, placed 3 at 10 Day School (hereinafter “Harbor”).^[18]

at 10and finished up his eight-grade coursework through a program of home instruction developed by the Parents. Tr. at 989-991.

Nevertheless, the Parents recognized that home instruction was only a temporary solution. Having spoken to Dr. 40, they began to consider the District’s High School and were optimistic that its varied programs would be challenging for 3 In addition, they believed the diversity of its student population and the range of social opportunities would facilitate 3’s ability to meet peers with whom he could feel comfortable. An additional strength of the District program was 3’s ability to continue working with psychologist 7 who had worked successfully with the student for many years. Tr. at 993, 996.

On July 14, 2016 the Parent wrote to the District, in anticipation that 3 would be attending ninth grade at the High School; an evaluation was requested. Exh. 2. Thereafter, 3 was determined ineligible for special education services, but was recommended for Section 504 accommodations. 3 commenced classes at the High School in September 2015 with 504 supports and a recommendation that further psychiatric assessment be conducted. Tr. at 1000; Exh. 7

By October 2016, however, the student had already begun to exhibit 9 behaviors at the District’s High School. Tr. at 1001. While the District initially attempted to facilitate 3’s reintegration into public school by allowing him access to the library when feeling stressed or overwhelmed, this option was soon removed. Instead, 3 was referred to the student support room which essentially functioned as a disciplinary time-out room. Tr. at 1002-1003, 1110-1111. The Parent observed that 3 was miserable in this room as the students were obstreperous and the supervision lax; 3’s teachers would simply leave stacks of paper with assignments for the student to complete although teacher schedules had been modified so that they could spend some instructional time with him. Tr. at 1004. 3’s 9 behaviors continued to surge, and the Parent testified that she was coping with daily school refusals, crying fits, outbursts of anger, 27 and self-denigration. Tr. at 1015- 1016. Beyond this, the student was increasingly fearful about the legal ramifications of his “truancy,” and the difficulties he had brought upon his Parents. Tr. at 1014. In desperation, the Parent requested home instruction which she believed was denied. Instead, when home, 3 would try to keep up with classwork by accessing Google classroom. Tr. at 1008.

In October 28, 2016 the student was evaluated by 17, M.D. and the CSE again convened on November 30, 2016 to discuss his report. Exh. 8. As a result of these proceedings, 3 was classified as 6ly and an IEP developed for the student. Exh. 9. Nevertheless, the Parent continued to express concern about the IEP’s supports. As 3 was not attending school, she did not see how the IEP’s provisions would be implemented.

Ultimately, the District developed an informal re-entry program for 3 in which he would attempt to attend the High School during the last two periods of the day but remain in the student support center. In fact, the Parent testified that, “work was left in piles for him in folders, but it was very disorganized, and he had to then again log onto Moodle and it’s very confusing. . . some of the assignments were marked as undone. It was a complete mess. . . It took me a really long time; I made separate folders and binders. If I couldn’t get through it, there was no way he was getting through it.” Tr. at 1011-1013. In the end, the Parent opined that the lack of organization exacerbated 3’s sense of incompetence and the student refused to continue after a few weeks. Concerned that her son was falling further and further behind with his school work, 1 again requested home instruction, but was denied. Tr. at 1019. While 3 remained home, he attempted to continue his studies by using his Christmas money to purchase textbooks and studying at the public library each day. Concurrently, in a further effort to address 3’s 9 behaviors, the Parents and their son were now seeing a cognitive therapist, 28, Ph.d. Exh. 15.

By this time, it was clear that the re-entry program had not been successful, and the District recommended a screening at 13 for the 14 School. In meetings with the District social worker and vice-principal, the Parent was assured that 14 was a school for children with 11 and other disabilities. Tr. at 1024. The Parent testified that they were, in part, open to the 14 placement as they did not believe there were any other alternatives. Moreover, they wished to support 3’s positive attitude toward 14, even if it only reflected 3’s view that it was his last opportunity to pass ninth grade. Nevertheless, the Parents were aware at this point that the therapists who knew 3 best did not support this option.

On January 23, 2017 a screening for 3 was scheduled. Exh. 12. As the Parent was unable to get 3 to attend, the screening was cancelled and the Parent’s request to attend solo was denied. As a result, a second screening appointment was scheduled on March 13, 2017. Tr. at 1097-1098. Exh. 19. At this time, 1 shared 3’s academic and psychological history with Mr. 38, 14’s psychologist. Tr. at 1102.

Thereafter, 3 commenced 14 during the last quarter of the 2016-2017 school year, understanding that this was his last chance to pass ninth grade. Tr. at 1033. The Parent testified that 3 was frustrated by the 30-minute classroom periods which were largely unproductive due to the disruptive behavior of his classmates. In English, the students were required to read aloud at the expense of class discussion. In math, 3 was frustrated by the slow pace of instruction. When asked for more challenging math assignments, additional material was furnished, although qualitatively the work was similar. Tr. at 1038-1039.

3 advised his Parents that the best part of the day was using the bathroom as it was the only time he could be alone and feel safe. Tr. at 1040-1041. Although the student was constantly frustrated and distraught, 3 continued to attend 14, albeit erratically and eventually received credit for ninth grade. 1 opined that 3’s high grades reflected the low level of academic material to which 3 was exposed. As the material was simple and basic, it did not have an impact upon 3’s deficits in executive function. Tr. at 1042-1043, 1065.

On May 24, 2017 the CSE convened to address the 2017-2018 school year. Exh. 19. At this time, the Parents expressed their concern about 14’s low level of academic rigor, a source of frustration for 3 In response, it was suggested that when 3 was able to tolerate the inappropriate behavior of his classmates, he would be rewarded with advance work. Tr. at 1048-1049, 1061-1062. The Parent indicated that there was some discussion about advanced on-line19 classes at 14, but this was limited to a calculus class. At this time, the Parents requested a functional behavior analysis so that they might gain greater understanding of the roots of 3’s school refusal. It did not reflect a concern about inappropriate externalized behaviors. Tr. at 1050. In addition, the District agreed that the Parents’ request for a neuropsychological evaluation was warranted. Lastly, the Parents did not disagree with the District’s recommendation for a small class but did dispute the appropriateness of 14. Tr. at 1052-1053.

Referencing the IEP’s goals, 1 expressed concern that they did not address executive function and seemed to simply to reiterate the same accommodations and modifications offered previously in 3’s 504 plan. Exh. B. On June 9, 2017 an 35 was prepared by 14 personnel. The witness testified that she was never consulted about the 35 nor was 3 interviewed. Tr. at 1055-1056. Although the witness acknowledged many conversations with Mr. 38, she testified that they had not specifically addressed the provisions of the 35. Tr. at 1102. As 3 was complaining about the student incidents in his class, 1 often called for feedback from Mr.

38. She testified, “It wasn’t just 3 coming home and telling me something. I called to find out the whole story” and was advised by teachers that children were having “behaviors” in class. Tr. at 1110.

19 Ms. 31’s remarks about using second period as an opportunity to take on-line courses is somewhat disingenuous as these classes are only available once required courses have been completed. Tr. at 291-293, 300. Although she had furnished a copy of Dr. 32’s evaluation to the District on August 17, 2017, she had not heard from anyone regarding her request to reconvene the CSE. Concerned that there would be no placement other than 14, the Parent testified that she began researching educational alternatives. By letter dated September 1, 2017, she placed the District on notice that 3 would be enrolled at 5, “subject to appropriate recommendations from the District.” Exh. X.

On September 13, 2017, the CSE reconvened. At this time, Dr. 32 participated via telephone and discussed the student’s need for particular modifications in order to address 3’s severe executive dysfunction. Nevertheless, she opined that the 14 team had adopted the same accommodations previously articulated in the May 2017 IEP.

3 commenced 5 in September with the intimate support of his therapeutic team, including Dr. 40 and a point person. She noted that Dr. 39 was flexible with both scheduling and curriculum such that 3 began to enjoy the academic experience and exhibited fewer 9 behaviors. The witness testified that the most “dramatic part is that there was peace. . . We felt good about it because this [attendance] was from him, it wasn’t us forcing anything . . .” Tr. at 1081. She noted that 3 continues to work with a social cognition teacher who facilitates his understanding of relationships and people. Although he still experiences 11 with week-end transitions, 3’s progress has been substantial. Tr. at 1086-1087. As a consequence, family dynamics have achieved a new calm as the stress associated with poor self-esteem, 11 and 27 has diminished.

The School District’s Position

The School District maintains that the IEPs of May 24, 2017 and September 13, 2017 are valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). 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. In view of the foregoing, 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. Its duty is fulfilled by the implementation of a 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]).

The District further maintains that the 5 placement is not an appropriate placement for the student as it does not comport with the notion of furnishing services within the least restrictive environment. It argues that 5’s teachers are not certified or uniformly licensed and that the School does not provide full-time psychological or mental health services. Similarly, the District maintains that the absence of a health program which currently prevents 5 from issuing a New York State Regents diploma must be considered in determining the appropriateness of its School. It additionally asserts that 5 has not demonstrated evidence of 3’s “sufficient progress” in academics and other areas. IHO Exh. I at 26. In furtherance thereof, the District additionally objects to the failure of 5 to issue standardized report cards with grades, renderimg the program inappropriate as progress cannot be quantified under these circumstances.

Finally, I note that there is no claim that the Parents’ actions militate against their equitable entitlement to relief.

The Parents’ Position

The Parents assert that the School District stands in abrogation of its duty to provide 3 with a free and appropriate public education for the 2017-2018 school year 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). As such, counsel maintains that the IEPs generated May 24, 2017 and September 13, 2017 reflect a number of substantive 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 3.’s 6 and executive function deficits compromised the integrity of its educational planning. In furtherance thereof, counsel maintains that the School District’s IEP broadly neglected the student’s academic, 6 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). Beyond this, the Parents maintain that the 14 placement was patently inappropriate for 3 as it did not consider the student’s 6 and academic profile nor did it offer services within a suitably enriched pupil: personnel paradigm.

Consistent with their argument, the Parents contend that 5 constituted an appropriate placement for their son during the 2017-2018 school year and, furthermore, that 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. There is no claim for compensatory education.

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-CV2141 (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 con28ng 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"); J.R. 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 May 24, 2017 and September 13, 2017 IEPs reasonably calculated to confer an educational benefit upon 3. during the 2017-2018 school year?

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

Clearly, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n.21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside" as the IEP (Rowley at 192). Indeed, "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act" (Kerkham v. McKenzie, 862 F.2d at 886). Similarly, failing grades are not dispositive evidence of a denial of educational benefit (Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). Finally, even if the record revealed a lack of progress under a particular IEP this too does not automatically render that IEP inappropriate (Antonaccio v. Bd. of Educ., 281

F. Supp. 2d 710, 724 [S.D.N.Y. 2003]).

Were the IEPs of May 24, 2017 and September 13, 2017 IEPs reasonably calculated to calculated to confer an educational benefit upon the child” beyond “mere trivial advancement?” Turning to the question of 3’s IEPs, it is clear that the May 24, 2017 CSE did possess many appropriate evaluations and assessments. Exh. 19. These included WISC-V scores and Woodcock-Johnson IV from August 2016. In addition, recent psychological and psychiatric reports were reviewed. Exhs. 4, 5, 8. However, aware that 17 had diagnosed the student with a range of significant , it is clear that the 6/functional implications of 3’s disability were marginalized in the May 24, 2017 document. Exhs. 19, 8. For example, psychologist 7 knew the impetus for the Parents’ initial referral concerned 3’s “transitions, resiliency, self-esteem and acceptance and trust of others/self.” Similarly, by August 2016, Ms. 7 noted that the student’s academic history was now characterized by “extreme avoidance,” and “high levels of school 11 characterized by a decline in over-all academic performance.” Exh. 8 at 3. By this time, 3’s school avoidance had led to an unsuccessful small private school placement and a mid-semester foray into home-schooling due to non-attendance in the Parents’ desperate effort to continue their son’s education. However, neither 9 nor are addressed within the May 24, 2017 IEP although these were the Parents’ presenting concerns as early as July 2016. Exhs. 2, F.

Rather, the psychologist’s summary focused upon the student’s cognitive strengths and normative deficits without due consideration of 3’s significant executive functioning deficits and their impact upon 3 As a consequence, 3’s primary 6 disability merited only one (30 minute) period of 1:1 23 and one (30 minute) group session per week. Both goals presume attendance at school and both Dr. 32 and Dr. 40 testified at length as to why the two social/6 goals were inappropriate for 3 None of the IEP goals address executive function.

Although 3’s Verbal Comprehension Index fell at the superior percentile, many of his scores were highly discrepant from his verbal abilities. For example, although the student’s over-all Visual-Spatial Index reflected median scores at the percentile, sub-scores fell as low as the percentile in visual puzzles, a measure of visual and spatial reasoning as well as visual working memory. Exh. 4 at 5-6. Similarly, at first glance the student’s Processing Speed Index indicates scores at the percentile. Nevertheless, coding, “a measure of short-term visual memory, psychomotor speed, visual perception, visual-motor coordination and visual scanning ability,” fell at the percentile. As stated in Ms. 7’s report, “[I]t is important to consider 3’s performance on each measure as compared to other students his same age, as well as the pattern of his responses as compared to his own cognitive profile (emphasis added).” This did not occur. When conflated into one score, 3’s deficits presented within normative values, although grossly inconsistent with 3’s own Verbal Comprehension Index. However, when not consolidated into one score, sub-scores frequently reflected even greater deficits and discrepancies within 3’s own profile.

For example, the May 24, 2017 IEP states, “3 exhibits extreme difficulties with organization and planning skills. He often loses items . . . When he is in school he does typically manage to keep track of short term assignments, (such as homework) but he struggles to plan effectively for long term projects and assignments. He has difficulty with modulating his effort when completing tasks. He tends to be either overly absorbed in a task or displays a very short attention span. Sustained effort is very difficult for him . . . 3 has trouble engaging with the classwork presented as part of the curriculum . . . Exh. 19 at 4. Nevertheless, the IEP of May 24, 2017 included no study skills goals and reflected generic drop-down modifications. In contrast, 17’s report did not address the child’s executive function at all. Exh. 8. ^[20]

Although Ms. 7’s report indicates the importance of evaluating cognitive scores relative to BOTH the general population and the student himself, this did not occur. Exh. 4 at 5. There was little discussion of 3’s executive deficits and the CSE did not address the student’s grossly disparate sub-scores (within his cognitive profile). That 3 could pass his classes when in attendance simply underscored his ability to masks the true extent of his executive deficits by virtue of his native giftedness in verbal cognitive/language abilities. Exh. E at 7.

Indeed, whether one believes the “42” or “42” designation is a bona fide classification or diagnosis, the terms simply give a name to the issues experienced by 3, a child whose ego was struggling to reconcile the dichotomy between his superior intelligence and his mediocre achievement. Again, these issues were already suggested by Ms. 7’s report in her statement, “[I]t is important to consider 3’s performance on each measure as compared to other students his same age, as well as the pattern of his responses as compared to his own cognitive profile (emphasis added).” Exh. 4 at 5.

Addressing 3’s test performance, it should be noted that Ms. 7’s testing occurred in a quiet setting, on a oneto one basis with a familiar examiner with whom the student had a long-term relationship. These ideal, but artificial testing conditions are inconsistent with the manner in which materials are presented to students within the classroom. In this case, the standardized scores essentially presented a cognitive and achievement profile reflective of an alternate test reality rather than one based upon actual classroom performance and protocol. This is particularly true as Dr. 32’s subsequent scores were significantly more divergent, many of the executive and memory sub-test scores falling at the first percentile.

In fact, the student totally decompensated 6ly in the middle of Dr. 32’s testing, refusing to continue the evaluation process and requiring an additional 23 session before he could be coaxed back into the testing process - behavior analogous to 3’s school avoidance. As such, Ms. 7’s test scores must be viewed within context. Although the District did not possess Dr. 32’s assessment on May 24, 2017, the variability subsequently yielded in his test results underscores the significance of testing conditions and circumstances.

3’s ability to function within the classroom cannot only be viewed in terms of manipulated test scores obtained under ideal conditions. Low average and average scores yielded within a structured and modified test environment are not necessarily dispositive of actual ability within the classroom environment. This is especially true where, as with 3, deficits in executive function interact synergistically with other comorbidities such as 22, clinical 27 and a diagnosed 11 disorder. The CSE was aware of 3’s 6 dysfunction but did not consider the impact of 3’s relative underachievement when compared to his cognitive strengths. Instead, it emphasized 3’s average academic performance, a considerable achievement given his excessive absenteeism.

Beyond this and most significantly, reports yielded on Ms. 7’s 16-3 indicated clinically elevated measures of 11, 27, attention and withdrawal. While indicating that all indexes were elevated into the clinically significant range, Ms. 7’s Summary and Conclusions do not address these concerns. Rather a glancing remark indicates that 3 has an “overall dislike of school.” Exh. 4 at 10.

Relying, in part, upon Ms. 7’s Psychological Report, the District’s May 24, 2017 IEP continued to address 3’s underlying executive function deficits and/or discrepancies in a perfunctory manner. The IEP references boiler-plate “drop-down” accommodations and modifications which presume that the student is able to attend school, a misguided presumption given the presenting issue voices by the Parents. Although the IEP does reference the user of graphic organizers, templates and verbal instructions, there is no way to quantify the efficacy of these modifications as there are no study skills goals; these modifications are simply offered in a vacuum. Curiously, the Psychiatric Report of , M.D. does not address any of 3’s executive deficits, but focuses on providing the child with various diagnoses, including 26 , Generalized 11 , Unspecified 27 , and suggesting various interventions to treat these. Exh. 8 at 4. The IEP is silent regarding study skills. Indeed, in her email to 14, even 48, the District’s Director of Special Education, expressed concern about the student’s IEP goals, indicating that the District would re-write them. Tr. at 304-305; Exh. V. Most significantly, the IEP recommends several reading, writing and math goals, none of which were incorporated into the May 24, 2017 IEP. Exh. 19, passim.

In fact, Ms. 7’s recommendations suggest that 3 was “unlikely to require specialized program supports” but “may benefit from 23 as a related service.” In this manner, the District focused upon the academic strengths of the student’s profile and neglected the executive and 6 components. Ultimately, the psychological report essentially recommended the same 504 modifications and accommodations that had already proven unsuccessful. In contrast, Ms. 7’s Social History indicates that even with the 504 Plan, the student had begun to struggle in middle school, “display[ing] a decline in overall academic performance and high levels of school

11. . .” Exh. 5 at 2. Yet, there were no goals addressing executive function and the denominated accommodations reflect educational strategies that any good teacher should offer to his/her student. They are not, however, individualized for 3

While the IEP indicates that, “We are individualizing 3’s education program because of unique needs related to attendance which interferes with his academic progress,” this is merely a self-serving statement as the IEP does not offer a meaningful or quantifiable approach to his 9 behavior. In furtherance thereof, I find the lone goal requiring 3 to “identify factors that negatively impact his ability to attend school/class every day,” substantively and procedurally inadequate. Although Dr. 32 did not disagree with this goal, he believed it was too general for 3 as it did not address the underlying causes of his negative self-talk and his lack of insight regarding expectations and performance. Tr. at 825-826. Similarly, Dr. 40 opined that the goals were premature as 3’s 11 and 27 rendered him incapable of self-reflection. Tr. at 611-612. Finally, Dr. 39 opined that a goal in which 3 was asked to express a negative emotion was inappropriate for 3 as he “often does not realize what is happening at the time to him.” Tr. at 553. Thus, the student may not recognize that he is becoming 11 until he is entirely overwhelmed. Beyond this, the goal presumes attendance, a considerable presumption given 3’s history.

The most salient feature of 3’s disability was the 6 underpinnings of his 9 behavior. Separate and apart from the student’s academic achievement, 3’s psychiatric dysfunction was marginalized by a CSE which possessed but did not adequately consider the 6 ramifications of an underachieving but extraordinarily bright student. While this discrepancy might not be impactful for all students, for 3, the discrepancy simply memorialized his sense of incompetence and eroded whatever self-confidence he had. Clearly, he had no ability to reconcile his own expectations with his actual performance, a scenario which through the years grew into full-blown 11, clinical 27 and school avoidance. Until the underlying executive issues were addressed, 3 would continue to struggle in school, blaming himself for his poor academic performance and spiraling further into psychiatric dysfunction. Clearly, the CSE did not appreciate the nexus between 3’s discrepant abilities and the student’s self-denigrating and nihilistic emotions.

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 a 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)). In sum, I find that the May 24, 2017 IEP did not adequately appreciate 3’s executive deficits and their impact upon the student’s 27 and school avoidance. The goals were inadequate and are internally inconsistent with the document’s own recommendations for reading, writing and math goals, none of which were incorporated. Exh. 19 at 2-3.

On September 13, 2017, the CSE again convened following receipt of a more detailed psychiatric assessment from Dr. 32, an assessment underwritten by the District. At this time, Dr. 32 participated in the proceedings and offered his opinion. With the advantage of Dr. 32’s input, however, very few changes were made to the IEP. In furtherance thereof, the neuro-psychologist testified that 14’s personnel were only implementing the less important modifications and were not incorporating the most important recommendations articulated in the first part of his report. Tr. at 813-814. Similarly, Dr. 39 testified that many of the accommodations articulated in the child’s IEP21 were reactive in nature and did not address the root of 3’s problems. As such, they would only be implemented after the student had already failed to absorb the materials, drawing further attention to his weaknesses. Tr. at 555-556. While individualization is the axis upon which the IEP spins, the CSE continued to endorse the most generic, boiler-plate modifications which might apply to any child with a disability. Tr. at 813.

For example, Dr. 32 noted that the student presented with a long history of distractibility and attentional impairment. Exh. E at 9. As a result, 3 frequently missed or forgot key words or parts of directions, errors

21 Repetition, refocusing and redirection which had a dramatic impact upon comprehension. Moreover, because 3 demonstrated poor self-monitoring skills, the student had difficulty regulating his own performance and struggled to self-correct and revise work. Dr. 32 testified that 3 constantly lost track of what he was doing, forgot directions, made careless errors and became increasingly distracted as material became more challenging. Tr. at 769. For this reason, the neuropsychologist believed it was “absolutely crucial” to monitor 3’s comprehension in “real time” and to require text-based evidence to support his answers. In the absence of ensuring 3’s comprehension, the student would simply shut down and resort to highly destructive and negative self-talk. Tr. at 773. Although the IEP refers to “check[ing] for understanding,” it is clear that Dr. 32 sought more than a perfunctory nod to “making sure 3 is on task.” Exh. 29 at 12. Instead, Dr. 32 noted that it was critical that instruction which was visual in nature should be supplemented with language. Tr. at 760. Neither the use of text-based evidence nor verbal supplementation of visual instruction was adopted by the CSE although Dr. 32 noted that these modifications were vital to 3’s success within the classroom. In fact, the use of text-based evidence would have benefitted many in the classroom as it is one of the skills emphasized in the Common Core Curriculum. Tr. at 773-774.

Although a CSE is required to consider private evaluation reports, it is not required to follow their recommendations (see, e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]). Significantly, Dr. 32’s report was not an independent educational evaluation. Rather, it was obtained on the advice and consent of the District and underwritten by the District. Tr. at 142-143. Under these circumstances, the District has a greater responsibility to incorporate Dr. 32’s findings into its IEP. It cannot simply ignore its substantive content and incorporate generic modifications which are not individualized for the student. Nor can it reasonably impeach the integrity of its own evaluation. While the District is not obligated to adopt every recommendation generated within an evaluation, many of the accommodations and modifications recommended by Dr. 32 and considered “crucial” by him (i.e. supplementing visual instruction with verbal descriptions and/or use of text-based evidence to ensure comprehension) could have been implemented with minimal difficulty and intrusiveness within the classroom.

Beyond this, the IEP included many mistakes and inaccuracies. In some cases, there were significant omissions. Tr. at 882. In furtherance thereof, Dr. 32 noted that 3 did not possess average auditory and visual memory skills, although this was reported in the document. Tr. 821-822; Exh. 29 at 7. In fact, 3’s visual memory skills fell at the percentile, a clear deficit for any individual. Likewise, the student’s visual memory skills fell at the percentile. Exh. E at 23. Although the student struggled with multi-step direction following, careless errors related to chronic 22 and visual learning, there were no goals addressing these skills. Tr. at 833-834. Beyond this, Dr. 32 expressed concern about the CSE’s understanding of 3’s disability. In furtherance thereof, he testified, “. . . one teacher at one point said, ‘Like the doc said, if the information is concrete he can get [it].’ That is the opposite. 3 is brilliant but that was not what I was saying. That was a concern.” Tr. at 814.

3’s reading comprehension was additionally well below expectation, a situation compounded by 3’s distractibility and tendency to make careless errors. Tr. at 882. While the student has strong decoding abilities, his comprehension is compromised by executive deficits in which he does not register relevant details or key words. Nonetheless, neither the May 24, 2017 nor the September 13, 2017 IEPs reference any reading or comprehension goals which address these deficits. The IEPs describe 3 as a student who “is unable to determine two or more central ideas in a text, analyze their development over the course of the text and provide an objective summary of text.” Specifically, both IEPs state, “3 needs a goal to help him determine more than one central idea of a text.” Exhs. 19 at 2; 29 at 8. Yet, there is no reading goal. Although the IEP references various highlighting techniques and graphic organizers to facilitate 3’s ability to organize materials, this is mere verbiage in the absence of any quantifiable goals.

In writing, both May 2017 and September 2017 IEPs state, “3 needs a goal to develop and strengthen his ability to focus on how well the purpose and audience have been addressed in his writing.” Exhs 19 at 2; 29 at 8. Nevertheless, there is no writing goal. In fact, Dr. 32 specifically noted that . needs guidance in terms of integrating ideas, using conjunctions, brainstorming and organizing thoughts, selecting priorities and sequencing them. Tr. at 777. None of these executive skills is addressed by either IEP although whoever drafted these documents twice observed that 3 needed writing goals. Exhs. 19, 29. Finally, in math, the IEPs state, “3 needs a goal to improve his ability to solve problems using geometric relationships.” Ibid. Again, there are no math goals.

Although there was some question as to whether Dr. 32 agreed with the IEPs’ goals, clearly the IEPs themselves were internally inconsistent with their own recommendations. More significantly, the fact that the need for these goals is reiterated word by word in both IEPs without actually incorporating them militates against the validity of both IEPs and the care with which they were drafted. In fact, when asked about whether the CSE had considered inserting a study skills goal, Ms. 31, 14’s principal, circuitously testified, “No. So, you know semantically we use the terminology of goals there when we were in the SPAM section, but, you know certainly 3 is a capable young man who has some relative weaknesses that really, we had hoped that the SPAM section truly embraced . . . That being said, in hindsight, a study skills goal 22 would have been definitely appropriate in this annual review section.” Tr. at 286-287. Considering the fact that 3 was recommended for a self-contained classroom, the absence of reading, writing and math goals is egregious.

Assuming, arguendo, that the IEPs of May 24, 2017 and September 13, 2017 delivered FAPE, was 14 an appropriate placement for 3?

Consistent with 8 N.Y.C.R.R. Section 200.6(h) a school district must place students with disabilities in classes with peers of similar individual needs, including “(i) levels of academic or educational achievement and learning characteristics; (ii) levels of social development; (iii) levels of physical development; and (iv) the management needs of the students in the classroom.”

At the outset, I note that the District’s own witness, Ms.24, testified that 3, “. . .was not like the other students who normally attended 14.” Tr. at 172. This is clear from 14’s key programmatic elements. Upon entrance to 14, all students are provided with a Behavior Intervention Program, largely con28ng of behaviors. Exh. G. This is the centerpiece of 14’s program and it reflects a level of management need grossly inconsistent with 3’s profile. Tr. at 815-816, 818. Both Parent and District witnesses testified repeatedly that 3 is a compliant and non-aggressive student. Tr. at 596-597. His 6 dysfunction is inwardly directed. As such, he is withdrawn, depressed, 11 and nihilistic about his future. He does not display any of the negative behaviors articulated in 14’s 36, a central feature of its program. Exh. G. In fact, Dr. 32 testified that the rewards associated with 14’s 36 were actually aversive for 3, who had no interest in taking class trips or socializing with peers. Finally, even when the Parent requested an 35, for the purpose of gaining greater insight into 3’s 9, 14 social worker 38, LCSW, concluded that a 36 was not indicated. Tr. at 1050; Exh. 21. Although Ms. 31 testified that the preponderance of 14’s student population is “fragile,” her remarks are belied by the structure and protocol inherent in their program. Moreover, the vigilance exerted by 14 is inconsistent with the behavioral profile suggested by Ms. 31. Thus, one wonders why students may only enter the bathroom one at a time. Tr. at 264, 330. Similarly, the school does not utilize its locker-room, requiring

22 In the May 24, 2017 IEP students merely to change into sneakers for gym. Clearly, negative behaviors are pervasive within the School’s population as it is apparently necessary to assign paraprofessionals and instructional staff to “shadow behind the [lunchroom] table in a cafeteria” which may only have 20 students. Tr. at 330. Assuming the behaviors denominated in 14’s 36 are mild and sporadic, it should not be necessary to dedicate the 8:1:1 paraprofessional to taking data every 15 minutes. Tr. at 330-332. In fact, notwithstanding Ms. 31’s discussion of placement and classroom “dynamics,” she noted that aggressive students who exhibit the behaviors enumerated in 14’s 36, would be placed alongside fragile students if academic need and grade level were similar. Tr. at 327-328. It is no wonder that 3 reported that his favorite time of the day was using the bathroom facilities as this was the only time he felt safe at school. Tr. at 1040-1041.

Beyond behavioral considerations, I am not persuaded that there are sufficient peers at 14 whose cognitive profiles are similar to those of 3 Although 14 personnel testified that they had “bright” children in its program, it is unclear whether any reflect 3’s superior level of intelligence or share the cognitive profile of 42 students. Tr. at 814. In fact, the only advanced placement classes offered are provided remotely on computer and do not offer the opportunity to ask questions in real time. This suggests little to no demand for these academic offerings. Describing the courses, 31 testified, “. . . you have to be very motivated to do it with online courses.” Tr. at 283, 300. Nevertheless, assuming appropriate levels of motivation, these advanced placement classes could not be accessed until 3’s required courses had been completed. Tr. at 151, 184.

The testimony is additionally clear that 3 was very frustrated by his peers who were disruptive and disinterested in academics. Although motivated by intellectual pursuit and learning, 3 found himself in class with students blasting music from boom boxes, yelling disrespectfully at teachers and using foul language. Tr. at 589, 591, 595, 811-812. In English, the student was frustrated by the fact that much of the class was devoted to reading out loud, paragraph by paragraph, limiting discussions of substantive merit. Tr. at 302-

304. Under these circumstances, the concept of “differentiated instruction,” as articulated by Ms. 31 is illusory. Tr. at 264. Described by witnesses as a “deep thinker,” who pondered existential questions, spoke like a “college professor,” and “carried the weight of the world on his shoulders,” 14 quickly became an aversive environment and 3’s psychiatric condition deteriorated. Tr. at 453-454, 595, 740, 870.

Finally, 3’s complaints about the lack of intellectual rigor and disruptive behavior were met with suggestions that the student learn to tolerate unruly classmates. Described as “cognitive reframing,” Ms. 31 justified 3’s immersion into a rowdy classroom as an opportunity to practice 6 regulation in real time. Tr. at 276. Her simplistic response, to wit: “You may not be able to change the events in your life, but you can certainly change and regulate your 6 response to those things,” neglects all consideration of 3’s long history of sensory dysfunction. Social worker 38’s approach - working with 3 to increase his patience with learning differences - is equally misguided. Tr. at 354-355. As Dr. 32 indicated, sensory processing disorders are frequently addressed environmentally, facilitating one’s ability to access an education by moderating overwhelming sensory overload. For many students, sensory issues are rightfully viewed as a handicapping condition for which various accommodations must be made. Students who experience sensory overload, such as autistic children, are not simply asked to “buck up,” adapt or learn to tolerate noisome and frightening sensory environments. This was a particularly insensitive and stressful recommendation for a child who had only recently hid in a closet following the presidential elections. Tr. at 876-878, 803.

Finally, given the class size at 14, it is unlikely that the school would honor 3’s mandate in little more than a perfunctory manner. While described as an 8:1:1 paradigm, the class functions as an 8:1 in actuality. This is due to the paraprofessional’s primary assignment of taking data on each student every 15 minutes. While Ms. 31 testified that the paraprofessional can aid the students, the nature and extent of this assistance is unclear and there was no clarifying testimony from any classroom teacher. Under these circumstances, I believe 14 would honor 3’s IEP mandate in little more than a perfunctory manner. In fact, neither Dr. 32, Dr. 40 nor Dr. 28, the student’s cognitive-behavioral therapist, believed 14 could serve 3’s needs although Dr. 40 had been an early proponent of 14. Tr. at 587-588; 864-865; Exh. 15. All believed the environment and classroom were too large and overwhelming for 3

Finally, the District asserts that when not “coddled,”^[23] 3 forced himself to attend classes and was successful, having earned 4.5 academic credits. Nevertheless, the mere acquisition of these credits does not translate into a finding of FAPE. While it has long been held that 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. (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007]).

In fact, 3 had entered into a “contract” with his Parents to finish ninth grade on the condition that he not be forced to return to 14 for tenth grade. Although the student found the conditions at 14 highly aversive, 3 was now more concerned that Child Protective Services would separate him from his Parents due to “truancy” issues. Tr. at 1014. Upset that less competent students would pass ninth grade largely on the strength of their physical presence in school, 3 made a concerted effort to attend classes. In fact, those individuals who knew 3 best uniformly testified that the student’s 6 status further destabilized while at 14. Tr. at 595, 740, 627-628. 639-640, 870-871. Although 3, in fact, was able to accrue several academic credits, the testimony is clear that the student’s psychiatric status deteriorated, and the credits came at a price.

In sum, the IEPs’ failure to adequately address 3’s executive deficits, coupled with the lack of reading, writing, math and appropriate study skills goals render the student’s IEPs procedurally and substantively defective. They clearly did not address 3’s school refusals and the underlying 6 dysfunction related to 3’s 42 status. Moreover, the IEPs largely presumed that the student would be in attendance, a tenuous assumption at best, given 3’s history.

Beyond this, the District failed to provide a suitably small educational placement consistent with 3’s cognitive, educational and management profile although witnesses were aware of other placement options. Tr. at 641. While 3 did manage to finish the year at 14 with 4 ½ credits, those who knew him best testified unequivocally that the student’s 6 status deteriorated significantly during this time, placing him at further risk. Under these circumstances, I find that FAPE was not offered.

Point II: Was 5 an appropriate educational placement for 3 during the 2017-2018 school year?

Specifically, 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 IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; 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 5 correlates well with the student’s academic and 6 needs, as identified in the May and September 2017 IEPs. Although it is recently founded, 5 is a college preparatory school which anticipates that all students will graduate with a Regents diploma. It is New York State certified and licensed. Tr. at 464. The School provides services to “42” students, to wit: those who are highly capable or gifted cognitively, but who additionally suffer from learning impairments. As described by Dr. 39, the School’s founder, this disparity creates an 6 “disconnect” in which students struggle to reconcile their high cognitive abilities with their significantly less successful academic performance, despite their best efforts. As a result, many 42 students exhibit severe 27 and 11, viewing their discrepant performance as evidence of personal failure and incompetence. Dr. 39 testified that 5 is primarily focused on behavioral and social-6 changes such as the ability to tolerate academic risks as opposed to achievement and academic strength. Mastery of the substantive course content is of secondary import. Tr. at 453-454. This is currently crucial for 3 The School utilizes a range of special education strategies which support 3’s executive, auditory and visual memory deficits while enabling the exceptional aspects of his cognitive profile to thrive. Instructional materials are frequently selected by the students themselves, a programmatic element Dr. 32 believed was critical for 42 students. In this manner, 3 was given control and ownership over the educational choices he made, allowing him to pursue his interests while accepting responsibility for completing assignments associated with those interests. Tr. at 839. Dr. 39 testified that there is a great deal of flexibility inherent in the 5 curriculum and that individualization is the key to their success.

As such, grades are not given until students are 6ly ready to accept judgment, from others and from themselves. Tr. at 413. Instead, a narrative is offered which provides greater detail regarding academic and social-6 progress. Dr. 39 noted that the School does not accept students who exhibit high management needs such as those associated with schizophrenia, 36olar disorder and extreme aggression. 3 has been “diagnosed” as 42 by several providers. He is not aggressive, conduct-disordered or medicated. At 5, 3’s social issues are addressed with a cognitive behavioral therapist who facilitates 3’s understanding of social behavior and appropriate communication. This has been effective for 3 who struggles to socialize appropriately with peers.

For 3, the intense 6 support he is receiving from 5 is integral to his success. 3 sees the School’s psychologist twice a week. At the end of each school day, there is a “debriefing” with 3’s teachers to assess the child’s day and develop at strategy for the following day. Weekly management reviews are held and and a clinical team meets with both family and outside providers at least once a month or as needed. Teachers maintain a daily journal and additionally prepare a weekly report, which includes both academic and social-6 components. A one-to-one point person or “mentor” is assigned to each child. 3 entered 5 as a depressed, 11 and paranoid student who did not feel safe in school. He was distrustful of personnel and carried a legacy of having been bullied within the academic setting. As a result, 3 began the 2017-2018 school year with a sense of despair and cynicism as his previous history in multiple settings had been unsuccessful and the student had no reason to believe 5 would be different. Given this repeated pattern of school “trauma” even in small settings such as 10- it is unsurprising that Dr. 40 characterized the student’s initial transition into 5 as “rough.” Tr. at 519, 600. In fact, even with the 1:1 paradigm, 3’s ability to function within a school setting was initially shaky. 3’s attitude was essentially, “I’m a failure, I can’t do anything . . . Why bother going [to school]. I can’t improve myself.” Tr. at 543-544.

At the inception of the school year, 3 required the intimate support of a therapeutic team including Dr. 40, the Parents and Dr. 39 as the child’s point person. Witnesses testified that 3 does not advocate for himself and will simply withdraw from a challenging situation. As a result, 1:1 instruction is entirely appropriate for the student at this time as 3 is 6ly frail and shuts down easily, a behavior which translates into school avoidance. Nevertheless, some small group activities are available in art, music and Makerspace. It is anticipated that as 3 stabilizes and the School expands, these opportunities will become more frequent and personally accessible to 3 An enrollment of 10-12 children is anticipated for September 2018. Tr. at 415-416.

5’s curriculum utilizes a challenging STEAM/STEM approach which includes relationships with nationally known laboratories and facilities. Dr. 39 noted that 5 “goes beyond the Common Core in that we provide materials from various different sources. We are a project-based and strength-based program so that we take the students’ interests into consideration. We are very committed to triggering internal motivation because we realize that the “gold star” approach doesn’t work with older kids. If we don’t find a way to turn on that internal motivation for students,” it is unlikely success will be achieved. Tr. at 410-412. To that end, the School additionally offers an aviation program as well as computer-based projects and an environmental program taught by professional engineers and scientists in these content areas.

Although the District maintains that 5 is not an appropriate placement, "[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). Enrolled at 5 for approximately seven months at the time of these proceedings, those who knew the child best uniformly opined that 3 had made remarkable progress in terms of attendance and 6 stability, a fact evidenced by 39, Ed. D.’s affidavit dated April 24, 2018. She noted that the student is more confident in his abilities, less risk-aversive and more comfortable with submitting writing assignments. When asked to do so, he has even reached out to another student. Nevertheless, his ability to function within a group remains tenuous. Tr. at 483-484.

The Parent additionally testified that 3 has become happier and better adjusted 6ly, creating a greater sense of peace and calm at home. Tr. at 1081. The daily struggles and arguments about school have dissipated. In view of the above, I find that 5 was an appropriate placement for 3 during the 2017-2018 school year.

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2017-2018 school years?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646

F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

The evidence indicates that the Parents participated willingly in their son’s CSE convenes and additionally arranged for the participation of their related service providers. They have worked collaboratively with the District, permitting evaluations of their child, sharing private assessments and intervening proactively when possible. Exh. F. They did not rely upon the District to meet all of their expectations and independently sought outside advice and 23 when able. The Parents were consistently transparent about 3’s psychiatric dysfunction and hoped, that through their honesty, an appropriate placement would be secured.

The Parents willingly offered to attend 3’s initial 13 screening by themselves when their son refused to participate. They then attended a second 13 screening, having somehow enlisted 3’s cooperation in the process. When offered the placement at 14, they accepted with optimism and a sense of hopefulness. When advised about student disruptions within the classroom, the Parents sought out a second opinion from 14’s personnel and did not adopt 3’s statements unconditionally.

Finally, it is clear that the Parents’ duly placed the District on notice, as required, as to their plans to unilaterally place 3 if a suitable placement was not identified for their son (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]); Exh. X.

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. For all of the above reasons, I find that there are no equitable factors which militate against their right to recovery. Conclusion

The Parents’ request for relief is granted for the 2017-2018 school year.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the District shall make a payment of $89, 250.00 to the 5 School for tuition expenses incurred by 3 during the 2017-2018 school year. This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint dated October 20, 2017.

Dated: July 24, 2018

_________________________________________

Lynn Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in attendance on February 14, 2018

For the Parent:

, PC. by , Esq.

Ms. 1, Parent

For the School District

, LLP by , Esq.

7, M.S., District School Psychologist

, Director of Special Education

24, M.S., Chairperson, Special Education Persons in attendance on February 15, 2018

For the Parent:

For the Parent:

, PC. by , Esq.

Ms. 1, Parent

For the School District

, LLP by , Esq.

, Director of Special Education

31, M.S., Principal of 14 High School, 13

, Ph.D., Psychologist and CSE Consultant, 14 High School, 13

Persons in attendance on March 26, 2018

For the Parent:

, PC. by , Esq.

Ms. 1, Parent

39, Ed.D., Founder,

40, Ph.D. Psychologist

For the School District

, LLP by , Esq.

of Special Education

Persons in attendance on March 28, 2018

For the Parent:

, PC. by , Esq.

Ms. 1, Parent

2, Parent 32, Ph.D.

For the School District

, LLP by , Esq.

, Director of Special Education

Persons in attendance on May 3, 2018

For the Parent:

, PC. by , Esq.

Ms. 1, Parent

2, Parent

32, Ph.D.

For the School District

, LLP by , Esq.

, Director of Special Education

---

Footnotes

[1] That year there were in 3’s class. Tr. at 981.

[2] No teacher input was obtained as testing occurred over the summer although input was obtained as feedback from the learning support team meetings. Tr. at 78, 92-93.2 The learning support team does not generate written reports. Tr. at 98.

[3] The witness testified that the reintegration plan was not incorporated into 3’s IEP and contained no written goals. Tr. at 171.

[4] Although a paraprofessional is assigned to the class, this individual’s primary assignment involves data collection every fifteen minutes for 14’s behavior management plan. Tr. at 332.

[5] is a college preparatory school and it is anticipated that all students will graduate with a Regents diploma. Instruction is presently offered on a 1:1 basis although as of January 2018, some group instruction was offered in art, music and Makerspace.7 Independent study periods in cooking and chess are additionally utilized to develop social cognition skills. Although 3 shares space with other students during these periods, participates in a parallel manner as is not 6ly ready to work actively with other students. Tr. at 483-484.

[6] Five full-time students and one part-time student. It is anticipated that by September ten to twelve students will be enrolled.

[10] 3 was unable to tolerate the boisterous crowds in the hallways and quick transitions between classes. In addition, he struggled with social interactions. Tr. at 623.

[11] Eg. “If I don’t do well [on a test], it will haunt me the rest of my life.” Tr. at 726.

[13] The witness opined that the 43 was a superior test instrument when compared to the 15. However, he noted that scores were comparable such that the DAS GCA score would be directly commensurate with the full scale WISC. Tr. at 746-747.

[14] Among other strategies

[15] Describing himself as “stupid” and “hopeless” when performance is not perfect; believing that “life will do everything to screw me.” Tr. at 826, Exh. E., passim.

[16] i.e. loud noises and crowds in school, disruptive behaviors, construction at home, extended family members in the kitchen

[3] finished seventh grade at 10and then commenced eighth grade in a small class of approximately five children. Nevertheless, the same executive function issues began to surface and 3 struggled to manage the demands of several different classes with various assignments. As a result, the student became frustrated, depressed, excessively self-critical and untrusting of 10personnel. Within a month or so, the student’s 9 behaviors and 6 decompensation resurfaced dramatically. By April 2016, 3 was no longer attending classes

[17] Severe “melt-downs”, crying, school refusals. Tr. at 970-971, 987.

[18] Upon leaving the District’s placement, 3 chose to write letters to all of his teachers and counselors apologizing for his failures and blaming himself for his poor performance. Tr. at 976-977.

[20] Although Dr. 32’s psychiatric assessment was not available at this time, he later testified that this level of discrepant abilities only occurs in percent of the population and that it was a “huge difference.” Tr. at 733, 735.

[23] In fact, Dr. 32 testified that the Parents did not coddle 3 and made every attempt to encourage school attendance. Tr. at 795.