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 REDACTED

NYS ID. No. 509817

2 and 1 on behalf of their infant daughter, 1

-against-

The 3 Central School District

Procedural Context

By letter dated November 13, 2017 I was appointed to hear the matter of 2 and 1 as parents of 1, versus the 3 Central School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On December 12, 2017 the undersigned received SED notification that the resolution period had expired and, in furtherance thereof, a pre-26 conference was convened telephonically on December 15, 2017 for the purpose of developing a litigation calendar and, where possible, framing the issues. On December 27, 2017 the District interposed its Answer. Thereafter, on January 18, 2018 a second status conference call held. At this time, it was clear that the parties would be unable to arrive at a mutually satisfactory resolution of this matter, and 26s were held on May 22, 2018; May 23, 2018; June 14, 2018; June 21, 2018; June 27, 2018; August 6, 2018; October 18, 2018 and October 25, 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 March 14, 2019. Specifically, the Parents assert that the School District’s educational placement for the 2015-2016 school year, as memorialized by the May 11, 2015; September 8, 2015 and November 17, 2015 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. IHO Exh. A and SD Exh. 2. The Parents similarly assert that the District’s 2016-2017 placement constitutes a denial of FAPE by virtue of the provisions articulated within the IEP of June 2, 2016. IHO Exh. A, SD 29. Lastly, the Parents maintain that the District continued to default in its IDEA responsibilities and duties to 1 for the 20172018 school year by virtue of its IEP dated IEP dated May 24, 2017. IHO Exh. A, SD 39. As a result, thereof, they are seeking tuition reimbursement for the 2015-2016; 2016-2017 and 2017-2017 school years in furtherance of a unilateral transfer to the 4 Academy program (hereinafter “4”), a non-public school setting.

As a corollary, the Parents have defended the educational program implemented by 4 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 26 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 2015-2016 school year, the student was seven years old and in the first grade. I note that 1 is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and was initially classified as “5impaired” as that term is defined by 20 U.S.C. § 1401(a)(1). As of 1’s June 2, 2016 IEP, the child has been continuously classified as multiply disabled. Significantly, 1 demonstrates borderline 6.

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

The School District’s Case and Summary of Witness Testimony

7 testified as lead witness for the School District. Ms. 7 is certified in New York State as a special education teacher and has been employed by the District in this capacity for approximately twelve years. Beyond her teaching responsibilities, Ms. 7 additionally conducts assessments and participates in CSE meetings. She is, moreover, responsible for preparing the performance levels, goals and social components which are incorporated into the child’s IEP. Tr. at 65-67. The witness has worked in with both 15:1 and 12:1:1 classroom paradigms. During the 2014-2015 school year, Ms. 7 provided an instructional environment which included OrtonGillingham based programs,1 sight words and phonetic analysis in a multi-sensory context. Children were additionally introduced to the common core curriculum. Tr. at 83.

The witness has known 1 since 2014 when the child was a first grader assigned to her class. Having so testified, she has never formally evaluated 1 nor has she observed the child at 4. Tr. at 69. She noted that 1 was initially classified as a speech-impaired student and was assigned to a 15:1 classroom. Tr. at 26-28. As the year progressed, however, the child’s classroom ultimately became a 17:1:1 paradigm and a variance was obtained. Tr. at 71. The witness described 1 as a child who made very slow but consistent progress. Although the child did not exhibit negative management behaviors, she was difficult to motivate and frequently required re-teaching of instructional materials. Tr. at 84.

On May 11, 2015, Ms. 7 participated in a CSE review for 1 Exh. 2. In preparation for issuing its recommendation, the CSE reviewed 1’s progress reports and evaluations. The witness noted, at the outset, that the District’s progress report for 2014-2015 reflected significantly below grade level marks in the core subjects of math, reading and writing. Tr. at 27; Exh. 6. In contrast, 1 fared significantly better in subjects such as social studies and science as these content areas included a great deal of class participation and discussion, strengths for 1 Ibid. Ms. 7 further noted that although the District’s progress report ostensibly reflected no progress in certain core academic skills, these scores were based upon grade appropriate general education students. Thus, scores indicating a lack of progress were misleading. As there were no opportunities to reflect incremental growth within a score of “1” on the District’s progress report, one could not ascertain whether the child had, in fact, achieved small gains, progressing from a low “1” to a high “1.” Tr. at 77, 80; Exhs. B, 6.2 Instead, she opined that the IEP reflected more accurately upon the child’s progress.

Referencing the child’s present levels of performance in the May 11, 2015 IEP, Ms. 7 noted that 1 had made minimal progress but was improving slowly, a situation exacerbated by the child’s inconsistent effort and tendency to guess or rely on others rather than attempt to decode a word independently. Exh.^[2] at 4. Nevertheless, the witness opined that 1 had made progress in various individualized IEP goals, skills not assessed in the report card utilized by the District at this time. Tr. at 29; Exh. B. For example, as per data reported in the child’s IEP progress report,^[1] consistently achieved the goal of writing her first and last name. Exh. C at 2. Although during the 2014-2015 school year, 1 exhibited “less than anticipated progress,” in areas such as reading, comprehension and writing, District personnel continued to believe the child might achieve her goals.

Ultimately, Ms. 7 testified that the CSE believed 1 would benefit from a 12:1:1 classroom as this would involve fewer transitions, less classroom distraction and a more supportive instructional environment. Tr. at 34. At the same time, the child would have the benefit of a rich social milieu. The witness observed that 1 was a social child who had positive peer relationships and felt comfortable within the classroom. Tr. at 44. In addition to the support of a 12:1:1 classroom, the CSE recommended individualized 5therapy and 28therapy, services which could be offered as push-ins to the classroom, in addition to 28 therapy. Ms. 7 noted that there was no discussion regarding the need for a more restrictive environment and that the meeting proceeded amicably. Tr. at 37, 41-42; Exh. 2.

On August 28, 2015, Dr. 2 advised the District that he disagreed with the District’s proposed recommendations although he had not actually observed the recommended classroom. Exh. 11. Rather, he noted that 1 would be unilaterally placed at 4 for the 2015-2016 school year. Thereafter, Dr. 2 notified the District that he would like to observe the District’s recommended classroom and a site visit was held during the first week of September.

Following his observation, Dr. 2 reiterated his concerns about the proposed classroom’s student profile which he believed was too advanced for 1 He based this opinion upon bulletin board samples and the ease with which students engaged in a dice game. Referencing student work samples which had been placed on the wall, Ms. 7 assured Dr. 2 that these projects had been “polished” in preparation for open school night. Specifically, she noted that the children’s samples had been prepared one-on-one with the assistance of the teacher, in hand over hand fashion. It did not represent the raw, unedited efforts of the children. Tr. at 104-106; 121-122. Having thus explained the nature of the work samples to Dr. 2, Ms. 7 testified that the Parent did not ask to see the other, more authentic work products of the children. In fact, had Dr. 2 requested, she could have shared beginning of the year assessments memorializing the children’s reading and math scores. Tr. at 122. Regarding the classroom activity (a dice game) observed by Dr. 2, the witness testified that this game was one which the children had mastered the previous year. The game was being repeated as a refresher so that the children would later be able to engage independently in this activity. It did not reflect a skill recently acquired.

Thereafter, at the Parent’s request, the CSE again convened on September 8, 2015. Exhs. 12, 14. At this time, 1’s classification was changed to multiply disabled and two (2:1), 20-minute tutorials (one for math, one for reading) were recommended each day. Tr. at 90-91.^[3] In addition, all related services were offered on a pushin/pull-out model. Exh. 14 at 1. Beyond this, the Committee addressed the private neuro-psychological report prepared by 8, Ph.D. and 9, Psy.D, ABPP-Cn at the 10 REDACTED Achievement (hereinafter referenced as “the 11 Report”). Exh. 15. At this point, Ms. 7 testified that she no longer had any contact with the child but did continue to serve on 1’s CSE convenes. Tr. at 56.

On November 17, 2015, the CSE convened again at the request of the Parent who expressed concern that the CSE had not adequately addressed the neuro-psychological evaluation at the September 8, 2015 CSE. Exhs. 20 at 1,

23. At this time, personnel from 4 participated via telephone along with the District. The witness testified that, according to 1’s mother, the child had regressed and was now struggling to write her name, a skill she had achieved during the 2014-2015 school year. In meeting notes requested by Dr. 16 and prepared either that day or the following, Ms. 7 opined that 4 personnel did not really know the child and offered general assessments of 1’s current level of performance without specific criteria. Tr. at 58, 63; Exh. 23.^[4] If, as 4 had indicated, 1 was only one grade below her mainstreamed peers, Ms. 7 believed a 9:3 classroom in a non-integrated school was unduly restrictive. Alternatively, if 1’s skills were far more delayed - as the witness believed- this reinforced her view that 4 did not really know the child.

The November 17, 2015 convene additionally considered an 8:1:1 classroom but rejected it. Given 1’s social strengths, the Committee believed the child would benefit from the additional social opportunities offered in a larger class. At the same time, the enriched pupil: personnel ratio of a 12:1:1 paradigm would enable the student to easily receive instruction within a small group setting. Tr. at 110-111. Moreover, Ms. 7 testified that while the range of academic skills might be similar within the 8:1:1 classroom, she believed the social and verbal skills of these children would likely be weaker than that found in the 12:1:1 paradigm. Tr. at 112.

Finally, the witness described the child’s ability to function in terms of number sense, one-to-one correspondence, addition, and relative concepts of greater and/or lesser. Despite 1’s significant deficits in this area, the witness acknowledged that the IEP included only one mathematics goal. Nevertheless, Ms. 7 suggested that this lone addition goal was inclusive of several sub-set skills, functioning as an “umbrella” goal. Tr. at 116, Exh. 20 at 7. Ultimately, the CSE continued its recommendation for a 12:1:1 classroom, enriched by one twenty-minute period of reading and one twenty-minute period of math instruction daily.^[5]

Finally, the witness testified that she again participated in a CSE convene for 1 on June 2, 2016. Exh. 29. At this time, the IEP upgraded its supplementary recommendations for reading, adding an additional thirty-minute period each day. Similarly, an additional ten minutes were added to the daily math session. Exh. 29. As a result, 1 would receive two 30-minute sessions of reading per day and one 30-minute session of math per day.

13 additionally testified on behalf of the School District. Ms.13 currently serves as a school psychologist, a position she has held for eight years. Ms.13 is certified in New York State as a school psychologist and classroom teacher and has been employed by the District for approximately twelve years. She has never formally observed 1 nor has she evaluated her professionally. Tr. at 223-224. During the 2014-2015 school year, Ms.13 was assigned to Summit Park elementary. Although she had minimal contact with the student, the witness did participate as chairperson in four CSE convenes between May 11, 2015 and June 2, 2016. Exhs. 2, 14, 20, 29.

To begin, Ms.13 participated in an annual review for 1 on May 11, 2015. In preparation for this meeting, the witness testified that the child’s psychological report was reviewed along with teacher reports which were submitted prior to the meeting. Ms.13 noted that both Parents had participated in the proceedings and that the meeting was collaborative in nature. Specifically, 1’s mother requested that the group 5service be exchanged for an addition individual session in which her daughter’s articulation issues could be addressed. The District agreed and met the Parent’s request. Tr. at 141. Beyond this, the Parents did not express any objection to the 12:1:^[1] program. Tr. at 144.

Among the documents reviewed were the annual Speech and Language report (05/02/2015) and an Educational Update (04/21/2015). Exhs. 3, 9. A psychological evaluation was available but not specifically reviewed as it had been addressed previously. Tr. at 149; Exh. 10. At the end of the proceedings, Ms.13 felt there had been a consensus regarding the child’s program. As 1 exhibited strong social and adaptive skills, the child was able to function appropriately with her peers. For this reason, the Committee did not wish to recommend an unduly restrictive program. At the same time, it was clear that 1 was struggling and required greater special education instruction. The 12:1:1 paradigm was viewed as the appropriate means of achieving an enhanced special education experience while preserving the social benefits for 1 Tr. at 151. In September 2015, Ms.13 learned that importantly, a recommendation for two twenty-minute 2:1 supplementary instruction sessions (one in math, the other in reading) were incorporated into the child’s IEP. Tr. at 160-162; Exh. 14 at 1.

Comparing the District’s psychological report performed by REDACTED 19, Psy.D. and the 11 report, Ms.13 testified that the two were consistent with each other. Both reports noted that RED was a slow but erratic learner

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who required frequent repetition and scaffolding. Exhs. 10, 15. However, the 11

EDassessment now reported scores

on a verbal comprehension subtest which had more than doubled.^[6] Significantly, the 11 report indicated that 1 possessed borderline intellectual abilities and noted that “her academic skills have been largely consistent with her intellectual abilities . . . “ Exh. 15 at 2,9. Nevertheless, despite 1’s clear intellectual deficits, the 11 report indicated that many cognitive subtests fell in the low average range.

Finally, the witness observed that although the 11 report referenced two areas of risk on the Behavior Assessment System for Children, the child’s elevated scores in the areas of leadership and functional communication were consistent with 1’s struggles to use language appropriately. Tr. at 249. In furtherance thereof, the child’s mother denied any current concerns about 1’s behavior and did not report any mood or 27 symptoms. She did, however, indicate that 1 showed “mild difficulties with taking responsibility for her mistakes and in making decisions.” Tr. at 250, Exh. 15 at 8. Finally, although Dr. 1 indicated to 11 personnel that 1 was beginning to complain of stomach aches when discussing school or before attending school, this was not shared with District personnel. Exh. 15 at 8.

Referencing the 11 recommendations, Ms.13 agreed with the academic recommendations as well as the suggested classroom accommodations and modifications, noting that these were inherent within the structure of the District’s 12:1:1 class. Nevertheless, the 11 report had recommended a maximum classroom size of 8:1, a paradigm to which Ms.13 objected. Although the District does, in fact, have an 8:1 classroom, the children are significantly more impaired. She testified, “. . . the students that need such a high level of restriction are students with low scores across the board. It’s low cognitive, low social, low academic, low adaptive. They need help feeding themselves. Some of them are nonverbal. They are using signs. They have very low functioning.” Beyond this and given the child’s social strengths, Ms.13 testified that the 12:1:1 was far more appropriate and offered the benefits of mainstream inclusion for subjects such as art, 28 education, recess and lunch periods. In addition, monthly mainstream assemblies and programming were incorporated into school protocol.

Finally, as 1’s adaptive functioning and socialization skills were age appropriate, the witness opined that an 8:1 paradigm would pose a disservice to the child. Tr. at 185-186. Although 1 was an inconsistent learner whose motivation vacillated, she was capable of learning and had demonstrated this through her ability to sight read approximately 50-60 words. Similarly, while she continued to struggle with decoding skills, her mother had reported some progress in this area. Exh. 15 at 2. As a result of these proceedings, the CSE recommended a 12:1:1 placement consistent with their view that a more restrictive 8:1 would not be appropriate for 1 In response, Dr. 2 indicated that he would like to observe the proposed classroom and an appointment was scheduled shortly after.

Ms.13 testified that she accompanied the Parent during the observation. When he raised concerns about the level of written work posted about the classroom, Ms. 7 reiterated that these were edited samples, prepared with a great deal of teacher support, for open school night. Tr. at 178-179. The witness observed that the Parent did not ask her any questions or follow-up with concerns until a new CSE convene was requested.

On November 17, 2015 Ms.13 attended a third 2015-2016 CSE meeting for RED and the 11 report was again

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discussed. At this time, the Parents made it clear that they disagreed with psychologist 8’s conclusions. Tr. at

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184; Exh.15 at 2. Specifically, the witness testified that the Parent disagreed with REDACTED opinion that the child’s minimal progress was commensurate with her cognitive profile. Tr. at 243-245; Exh. 15 at 2. While Dr. 2 additionally questioned the qualifications of the 11 examiner, he did not disagree with the report’s remaining recommendations or statistical data.

As a result of the evaluations and contributions of the individual CSE members, an IEP recommending a 12:1:1 paradigm along with small group instruction was generated. The witness observed that some of the 11 recommendations were not specifically discussed as they are programmatically incorporated into the 12:1:1 paradigm. Nevertheless, she noted that the Parents remained concerned about 1’s slow rate of learning and the CSE’s inability to guarantee quicker results through its new 12:1:1 recommendation. While the witness observed that the CSE’s recommendations reflected informed opinions based upon professional assessments and observations, the Parents were averse to trying out a new program if its success could not be assured. Tr. at 186, 190-191.

While Ms.13 believed the District’s program was appropriate, she noted that 1 had been assigned to a multi-grade classroom (grades two through four) with nine children at 4. Moreover, Ms.13 reported that, when asked, 4 indicated that they did not formally assess their students. Rather, through informal evaluations, they concluded that 1 was, “making progress” but “it takes her time.” Exh. 21 passim. The witness testified that, as requested by Mr. 16, she prepared notes of the meeting and submitted them the following day. Tr. at 189. Exh. 21.

On June 2, 2016, Ms.13 again participated in the student’s annual review as District psychologist. By this time, 1 had spent her entire second grade year at 4 and it was anticipated that she would remain enrolled there the following year. As a result, data regarding the child’s present levels of performance and progress was based primarily on reports issued by 4. Tr. at 223; Exhs. 27, 29. Based upon the information provided by 4, Ms.13 opined that 1 continued to make minimal progress as they evaluated each goal.

On this date, the CSE altered the child’s reading and writing goals to reflect the acquisition of more sight words. As 1 struggled with a phonetic approach, Ms.13 testified that the use of sight words was a more productive approach to acquiring reading and writing skills. Tr. at 204. The IEP, moreover, now included supplementary aids and services, most notably two periods of small group reading instruction (2 x 30, 1:1, daily) and one additionally period of math (1 x 30; 2:1, daily). Tr. at 205-206. Although previously recommended for the child, this small group instruction was now “officially” designated in the recommended special education programs and services as opposed to listed more casually in the meeting information comments. Cf. Exhs. 20, 29. Nevertheless, there was no question in any CSE document that the services were mandated.

Referencing the class profile, Ms.13 testified that the children were grouped by need, rather than classification or

IQ. Having so testified, she indicated that 1 “would fit right into this group.” Tr. at 210; Exh. 30. In furtherance thereof, she noted that the reading groups fell within the end of kindergarten to middle of first grade levels and this was consistent with 1’s skills. Ibid. Nevertheless, on cross-examination, she acknowledged that she had not prepared the profile and was uncertain as to the school year it referenced. Tr. at 217.

REDACTED additionally testified on behalf of the District. REDACTED has a master’s degree in Speech and Hearing Therapy and certification in Administration. She testified that she has taught nearly all areas of special education within District and served both as the District’s Special Education Elementary Schools Director and District Chairperson of the CSE. She has been employed as the District’s CSE Chairperson for fourteen years. The witness chaired three CSE meetings on behalf of 1 but has never evaluated or observed her. Tr. at 368. Prior to the onset of each school year, REDACTED makes observations of the District’s self-contained classrooms so that she is familiar with what the programs they offer. Tr. at 375-377, 494.

By letter dated August 19, 2015, REDACTED indicated that the B. family submitted a ten-day notice indicating both their dissatisfaction with 1’s program and their intention to unilaterally place their daughter at 4. In response, the District’s Superintendent referenced the many changes it had made to 1’s IEP and offered to reconvene the CSE. Exhs. 11, 12. On September 8, 2015, the Committee reconvened, and, at this time, the Parents shared the 11 neuro-psychological evaluation. Exh. 15.

The witness recalled that the Parents objected to the 12:1:1 paradigm and believed 1 required a Functional Behavior Plan (hereinafter “FBA”). In sum, they did not believe the District could meet their daughter’s needs educationally, 28ly or socially. In contrast, REDACTED maintained that the 12:1:1 program would provide the child with some higher-level academic challenges and role models, while differentiating instruction in small group settings. Specifically, she opined that the 8:1 paradigm recommended in the 11 neuro-psychological report was not consistent with 1’s cognitive or social profile. Tr. at 275; Exh. 15 at 11. Although 1’s full-scale IQ of 71 fell at the 3rd percentile, a borderline score, REDACTED noted that the child could only be understood by assessing the child’s entire profile. In furtherance thereof, the witness noted that 1’s verbal comprehension was a relative strength as were her social skills. Tr. at 277-278.

In response to the 11 report’s findings and recommendations, the District modified 1’s September 2015 IEP to include an additional 20-minute block of 2:1 reading instruction and an additional twenty-minute block of math daily.^[7] This would supplement the classroom’s daily 90-minute literacy block and 60-minute math block. Tr. at 279, 386; Exhs. 14 at 1; 54. Although this recommendation was not specifically articulated in the Recommended Special Education Programs and Services of the IEP, REDACTED indicated that these services had been referenced on the cover page of the document as well as in both her letter and that of Mr. 16 to the Parents. Tr. at 294; Exh. 14. She noted that the District utilized a multi-sensory approach to reading and that, although not specifically identified in the child’s IEP, the District employed an Orton-Gillingham based protocol. Tr. at 388.

The child was, moreover, furnished with an additional speech period along with socialization and inclusion activities during lunch and recess.^[8] Where possible, all services would be rendered in push-in format. Referencing the academic accommodations and modifications denominated in the 11 report, REDACTED indicated that these were all programmatic within the 12:1:1 paradigm. Acknowledging that 1 did exhibit some atypical behaviors along with some difficulty adapting to new situations, REDACTED opined that the child’s behaviors did not rise to the level of requiring an FBA. While 1 could be distracted and anxious about approaching challenging material, she did not present with classroom management issues and the 11 report did not recommend either an FBA or BIP. Tr. at 282, 291, 379; Exh.15. Finally, the student’s classification was changed to multiply handicapped.

REDACTED noted that, while the 11 report had been furnished by the Parents, Dr. 2 did not accept the results. She, too, testified regarding Dr. 2’s concern that the examiner may not have been qualified to prepare the report. Tr. at 284-285, 317, 406. In furtherance thereof, she referenced the Parent’s disagreement with the examiner’s conclusion that 1’s progress was commensurate with her cognitive profile. Tr. at 284-286. While Dr. 2 did not appear to disagree with the scores themselves, he disputed this interpretation of 1’s ability to progress. Tr. at 409; Exh. 24. Although the witness observed that the child was making slow and steady, but minimal progress, the Parents believed their daughter could achieve more. In contrast, Dr. 2 believed the IEP goals were too advanced for 1

Nevertheless, REDACTED testified that the report was largely consistent with prior testing and, except for class size, its recommendations were aligned with those of the District. Tr. at 286. Having so testified, REDACTED reiterated her rationale for rejecting the 8:1 classroom within District, noting that the cognitive and 28 profiles in this setting were too impaired for 1 As a consequence, the child would have limited opportunities to socialize appropriately with her peers. Tr. at 291. In contrast, the 12:1:1 paradigm would furnish 1 with frequent small group and individualized instruction in a socially appropriate environment. In fact, she noted that the 8:1 pupil: personnel ratio recommended by 11 was larger than the 12:1:1 offered by the District. Tr. at 320.

Following the September 2015 convene, the Parents indicated a desire to observe the proposed classroom and did so shortly thereafter. Although Dr. 2 observed that both the classroom teacher and lesson were good, he continued to believe that the children were too high functioning for 1 and the classroom size too big. Tr. at 318-322. On or about October 24, 2015, the Parents again communicated with the District, indicating their disagreement with the District’s educational planning and placement. They additionally complained that the CSE had not adequately addressed the 11 evaluation. Exh. 16. In response, the District’s superintendent offered to schedule a third convene which was then held on November 17, 2015. Exhs. 18, 20.

At this time, REDACTED testified that the child’s father acknowledged that he wanted the “Cadillac” of programs for his child but understood that this would not be forthcoming from the District. Tr. at 317-318.^[9] Similarly, he was concerned about experimenting with various programming until arriving at an appropriate IEP for his child. This precipitated a discussion regarding the nature of an IEP as a “living document” and the occasional need to “tweak” its provisions until the right fit was achieved. Tr. at 327-329. As a result of this meeting, the witness furnished Mr. 16 with a typed copy of notes taken contemporaneously with the CSE proceedings. Tr. at 325; Exhs. 24, 52-54. Again, the small group recommendations for reading and math were only denoted in the Comments section of the IEP.

On February 29, 2015, REDACTED received a letter from Dr. 2 indicating that the Parent had not received the November 2015 IEP until January 13, 2016. Exh. 25. In furtherance thereof, he reiterated his objections to the District’s IEP, disputed the 11 evaluation and now objected to the manner in which Ms. 7 ran her classroom. He further disputed the process by which the District had selected an educational setting for his child, suggesting that 1 would have to fail at every possible placement before a non-public school alternative would be considered. Ibid. By letter dated April 11, 2016 REDACTED reiterated the District’s position regarding the appropriateness of its placement. Exh. 26. Finally, the witness noted that a classroom profile had, in fact, been offered to the Parents at the November 17, 2015 CSE convene. While she no longer had a copy of this document, REDACTED recalled that there were one or two children who were reading at 1’s kindergarten level and shared similar learning styles. Tr. at 341.

In comparing the District placement with 4, the witness testified that it is District protocol to take weekly probes of its students to determine progress. This is not something that is necessarily discussed with parents as it is utilized as a teaching tool for personnel. In contrast, she opined that 4 administrators did not monitor its students as closely. Tr. at 342. Beyond this, REDACTED believed the public-school program was meeting 1’s needs in a less restrictive setting, giving her more intensive instruction in reading, math and writing and providing opportunities for mainstream socialization. Tr. at 343-344.

On June 2, 2016 REDACTED chaired the CSE convene for 1’s 2016-2017 school year. Tr. at 346-347; Exh.

53. Among the items considered at this meeting was the 2015-2016 4 Comprehensive Student Plan (hereinafter “CSP”) upon which the CSE based much of its discussion. Exh. 27. Other than this, the District did not have any of its own educational testing or reports, nor had the District furnished any services. Tr. at 348, 352. Once again, the District recommended its 12:1:1 classroom, supplemented by extensive related services. Tr. at 454-58; Exh.

29. Although the witness acknowledged the existence of several different 8:1:1 or 8:1:2 programs within District, she opined that these settings were too restrictive for 1 Finally, the witness clarified a statement she made to the Parents regarding her wish that the District could offer

1 an 8:1:1 classroom. Specifically, at the conclusion of the November 2015 CSE meeting, REDACTED acknowledged a private conversation with the Parents. She stated, “When the meeting was over, we talked outside . . . and I’m a parent of a disabled child, and I have been a parent who has been upset with the District, and I do wish in my heart I could give parents everything they want. Sadly, parents aren’t always right and sometimes just my wishing it, it won’t happen . . .. Yes, I often say to parents, I wish that we could do what you want.” Tr. at 504, 508.

Referencing 4’s CSP, REDACTED noted that the report reflected significant progress for the student, albeit inconsistent. The witness, however, indicated that 4’s report of progress was meaningless as it did not include benchmarks along the way or indicate where the child’s skills had begun at the beginning of the school year. As the report was qualitative in nature, it did not give any specifics in terms of actual quantitative improvement. Tr. at 350, 430. Emotionally, 4 personnel indicated that the child’s 27 and frustration tolerance was improving. Tr. at 460.

While observing that 1 had made slow but steady progress in reading and comprehension, 4’s report indicates that 1’s improvements were “generally inconsistent and she will need constant review and repetition to retain the skills learned . . . her reading remains inconsistent and strongly dependent on her mood.” Tr. at 350-352; Exh. 27 at

5. When queried about the use of standardized testing, 4 informed the CSE that they did not do formal testing, a protocol REDACTED suggested was in direct contrast to the District’s repeated STAR testing and weekly probes. Tr. at 430-431. Having so testified, REDACTED acknowledged on cross-examination that these test instruments were largely not referenced in the child’s IEPs of September 8, 2015 or November 17, 2015 and that 1’s current levels of performance were described in qualitative terms. Exhs. 14, 20.

As a result of these proceedings, the District continued to recommend its 12:1:1 classroom supplemented by small group reading and math several times a day. Exhs. 28, 29. REDACTED testified that the CSE based its recommendation upon several factors, including a profile which she had not prepared, but reviewed prior to her testimony. Tr. at 365-367. In fact, the profile, generated by IEP direct, provided a basic description of the academic levels of the children but was not as comprehensive as a second profile prepared later by District personnel. Tr. at 443; Exh. 30. As previously, the Parents objected to the District’s recommendation, indicating that the program was too demanding and the classroom too large. Tr. at 453.

Robin 17 additionally testified on behalf of the District. Ms. 17 is employed by the District as a school psychologist. She holds multiple certifications in general education, remedial reading and school psychology. She is, additionally, certified as a BCBA10. Ms. 17 has been employed by the District as a school psychologist since 2000. Tr. at 531. She is familiar with 1, having served as the child’s case manager for her annual 20172018 review, conducted May 24, 2017. Exh. 39.

10 Board Certified Behavior Analyst Although she testified that the May 24, 2017 CSE possessed the necessary evaluations inherent in conducting an appropriate convene, she had been unable to obtain Parental consent for additional District assessments. Although she had sent several Prior Written Notices to the family requesting authorization, none was forthcoming until after the April 20, 2017 Prior Written Notice was sent return receipt requested. Tr. at 543-535; Exhs. 32,33. After several requests and a phone conversation, the Parent returned an executed authorization to District, dated April 4, 2017 but not received until May 1, 2017. Tr. at 581-587; Exhs. 33, 34.

By email dated May 1, 2017, Dr. 2 indicated that the family would be taking 1 for a private neuro-psychological evaluation. Nevertheless, he expressed concern that if the District conducted their assessment first, the issue of practice effects would arise. Consequently, Dr. 2 indicated that he would provide Ms. 17 with a list of tests to be performed so that District testing would not be duplicative nor would it engender a practice effect. Tr. at 624-

626. Psychologist 17 testified that she never received this list and, as a result, the District did not conduct its own psychological or educational evaluations. Tr. 540-542, 595; Exh. 35. She acknowledged that although a social history and certain adaptive questionnaires could have been conducted, they were not. Tr. at 631. Nevertheless, Ms. 17 testified, “. . . If a parent, if two parents are psychologists, and parents have written me an email and have asked me and have told me they are taking their daughter to 10 and have asked me to please not proceed with testing, I would not. . . It wouldn’t be the right thing for me to do, to override parents who are very well versed as psychologist and whom I have respect for. This is their child.” Tr. at 632. Having so testified, the witness indicated that the Parents did not specifically ask her not to conduct evaluations but expressed concern about the practice effects of repeated assessments.

On May 15, 2018, Ms. 17 conducted a formal observation of 1 at 4. At this time, the child was working separately from the rest of the class in a 1:1 math tutorial. Exh. 50. The witness noted that 1’s desk was pushed to the side of the room and the child was engaged in a lesson on identifying coins and counting. Following the lesson, 1 was able to practice her “shopping” skills, adding up purchases and counting out money. Ms. 17 indicated that the child had no interaction with her fellow classmates at this time although the child was very excited about “playing store.” Nevertheless, while “playing store” 1 became frustrated, sighed and put her head down.

Toward the end of her observation, Ms. 17 indicated that 4’s administrator, Ms. 20 reported that the child had significant academic difficulties, noting that “everything is hard” for 1 Nevertheless, the child loved to engage socially, and this was one of the student’s strengths. Tr. at 565. In furtherance thereof, Ms. 20 indicated that 1 had been grouped with higher functioning students to provide 1 with the opportunity to apply her more advanced social skills. Tr. at 569. The School does not develop formal classroom profiles although Ms. 20 testified that she uses a spread sheet to determine class assignments. Tr. at 999. Ultimately, the witness testified that 1’s isolation during the 4 observation reinforced her view that the 12:1:1 classroom was the appropriate placement for 1 Tr. at 566.

On May 24, 2017, the CSE convened. Although the District had been unable to conduct its own evaluation, 4 provided the student’s annual CSP along with multiple progress reports. As such, Ms. 17 testified that the CSE possessed adequate material to develop the child’s IEP. Tr. at 612; Exhs. 37, 39. Ms. 17 opined that, based upon the information furnished by 4, 1 was still struggling significantly and “was not making very much progress.” Tr. at 547. She was, however, demonstrating growth in her ability to interact with peers and participate positively in class, a finding consistent with 1’s BASC scores. Tr. at 549; Exh. 15 at 48. Believing 1 required strong academic support with meaningful opportunities to socialize (both mainstream and otherwise), the CSE again recommended the 12:1:1 paradigm. Ms. 17 testified that the District’s recommendations were aligned with the 11 neuropsychological evaluation but offered greater academic support than 11’s recommended 8:1 classroom. Similarly, the District’s program offered frequent inclusion opportunities other than lunch.^[11] Exh. 15 at 11. Beyond this, the clinician testified that the special education supports denominated in the 11 report were intrinsic to the 12:1:1 District program. Although the supplemental reading and math tutorials were not incorporated into the child’s May 24, 2017 IEP, she reiterated her testimony that 1’s weaknesses could be addressed within the 12:1:1 setting while using her social skills to facilitate learning. Tr. at 606, 629-630. The witness testified that the Parent was engaged during the proceedings but did not express objections to the District’s plan. Tr. at 552, 559. She did recall, however, that the Parents were concerned about a potential 26 loss for 1 and, as a result, the CSE determined that a primarily phonetic approach to reading was misguided. While the CSE awaited written confirmation from the Parent regarding the presence of a 26 loss, the CSE recommended a reading strategy oriented toward whole word recognition (to wit: a whole to part sight reading protocol). Tr. at 615-616.

16 additionally testified on behalf of the District where she has been employed since 1993 as a school psychologist and is presently an instructional supervisor. Ms.16 holds a doctorate in Special Education and is certified in General Education, Special Education, School Psychology and Administration. On cross-examination, Dr.16 indicated that she had been involved with 1 as early as June 2, 2016 when she served as a liaison between 4 and the District for the development of 1’s 2016-2017 IEP. Tr. at 689. As part of her duties and responsibilities, Dr.16 chaired a CSE meeting for 1 on May 24, 2017. Exh. 39. In preparation for the May 24, 2017 CSE convene, Dr.16 denoted several assessments and evaluations included within the 4 packet in addition to the 11 neuro-psychological assessment. Personnel from 4 were present by telephone as was the mother, Dr. 1 In comparing the 4 materials, Dr.16 observed that the District’s goals included a greater emphasis on acquiring sight words and a less phonetic approach to reading. Addressing the sight word approach, Dr.16 testified regarding the value of “going whole to part12, instead of part to whole,” when learning to read and building sight words. She added, “Usually, . . . once a student learns the word by sight, the going back and doing the phonics [is supported by] a familiar touchstone.” Tr. at 722. She believed this was particularly important for a child whose auditory impairments would interfere with the sounding out of words.

Reviewing 4’s CSP, Dr.16 noted that 4 had essentially recycled the same goals for the past two years (eg. separating phonemes and CVC words into discrete sounds and then blending sounds) and had made minimal progress. Tr. at 650, 653, 694. Dr.16 noted that it was difficult to ascertain exactly how much progress 1 had made as the CSP’s did not offer any quantitative information. Rather, its reports were based upon “teachers’ understandings and the teachers’ opinions . . . There is no a whole lot of objective data. There is no testing. There is no data analysis in any way.” Tr. at 1463, 1473. In the absence of any objective criteria, measurements of progress were ill-defined and ambiguous. Moreover, Dr.16 opined that several of the child’s reading goals remained the same across the span of three years. Exhs. J at 6; Q at 6; X at 6. Although 4 personnel reported that 1 had made slow but steady progress, Dr.16 noted that the child’s February 18, 2017 CSP continued to reflect basic first grade skills. Tr. at 1469.

Comparing the 4 program with the District’s May 24, 2017 IEP, Dr.16 observed that 4 was a much smaller school which provided a more intense pupil: personnel ratio and was hosted in a mainstream setting. Many of 1’s services were therapeutic in nature and involved pull-outs from the classroom. Alternatively, the child received frequent 1:1 or 2:1 instruction. Tr. at 702. In contrast, the District offered a larger classroom in which project-based learning, student collaboration and classroom discussion were key elements. Pull-outs would be minimized and skills such as reading would be generalized across other subject areas such as social studies and science. In addition, the District’s daily 90-minute ELA block was programmatic and would have stressed a “whole word” approach in which words already acquired through sight reading would later be parsed phonetically. Tr. at 654, 657-658.

Ultimately, the witness expressed concern about both 4’s reading methodology and its small classroom size. She did not believe a phonics approach was appropriate for a 26-impaired child and further opined that 4’s small class size provided limited opportunities to reinforce 1’s emerging social skills and self-esteem. In sum, she noted that class size alone was not dispositive of promoting learning. Rather, it was suitability of instruction. As such, Dr.16

12 When reading a word reiterated her view that it was more important for 1 to engage with her peers in cooperative learning and to be part of a learning environment in which she could comfortably ask questions and function as part of a group. Tr. at 664-666.

Dr.16 additionally testified regarding the CSE’s decision to remove the supplemental reading and math tutorials which had previously been incorporated into 1’s IEPs. Tr. at 661. Although 1 continued to struggle with academics, the student had made “tremendous” progress in terms of her positive attitude towards school. As a result of greater self-confidence, the student felt more comfortable participating in class. 1 was now less hesitant to express her thoughts, self-advocate, ask follow-up questions, and take academic risks. The witness testified, “Knowing that, I felt that it was in her best interest to stay in the classroom as much as possible.” Tr. at 662, 716, 1474-1475, 1478-1479. Given the child’s emerging self-esteem as a learner, Dr.16 opined that isolation in the form of separate 2:1 instruction would likely stigmatize 1 by drawing attention to her deficits. Tr. at 1481. Noting that 1 had begun to take initiative in the classroom and self-advocate, Dr.16 opined that these considerations outweighed the need for three separate 2:1 tutorials per day in math and reading. Clarifying this point, Dr.16 testified that she envisioned 1’s academic intervention continuing in the form of small group instruction albeit as part of the classroom program, rather than as a separate activity. In this manner, the classroom teacher would work with two or three children while the remainder of the class worked with the teaching assistant. Tr. at 1475- 1476. In addition to these changes, the new IEP no longer included adaptive 28 education. The witness testified that these IEP modifications were discussed with Dr. 1 and there was no objection. Tr. at 695-696, 1482.

At this time, the witness learned for the first time that 1 had been diagnosed with a 26 loss. Tr. at 1440. Although the report was dated December 3, 2016, it was not furnished to the District until June 12, 2017. Exh. 40. She noted that the report described a bilateral mild to moderately severe high frequency 26 loss and recommended an assistive listening device or 27 unit to mitigate the impact of an adverse listening environment such as a classroom. Upon receipt of the Parents’ 26 evaluation, Dr.16 contacted the District’s own audiologist for confirmation and advice. Tr. at 1449-1450; Exh. 41. The District’s audiologist additionally recommended assignment of a Teacher of the Hearing Impaired or an educational audiologist in order to educate 1’s teachers as to the use of the 27 unit and to assist with its use and maintenance. Finally, the witness testified that the use of an 27 unit would not necessarily alleviate the child’s audiological impairments, depending upon the sensitivity of the unit. She did not know, however, whether the audiological service had been implemented at 4, but opined that the use of an 27 unit has been beneficial for children with similar audiological profiles. Tr. at 1453.

Ultimately, a non-meeting amendment was made to the child’s IEP with a recommendation for audiological services, a critical component of 1’s IEP. Exhs. 44,46. Having so testified, the witness indicated that the child’s use of the 27 unit would have been monitored and, if necessary, a Teacher of the Hearing Impaired would have been assigned to 1 if 1:1 phonetic instruction were indicated. Tr. at 1459-1461. The Parent was additionally advised that the district of location in New Jersey would be responsible for supplying and monitoring the 27 unit.

Ms.16 characterized the meeting as open and productive, noting that the Parents indicated that they wished to keep their FAPE options open. In fact, the Parent indicated an interest in observing the proposed classroom and it did not appear that 1’s placement at 4 during the upcoming 2017-2018 school year was a fait accompli. Tr. 698. Indeed, Ms.16 testified that the believed the Parents were sincere in their consideration of a District placement. Tr. at 1458.

Referencing the 4 packet, reviewed during the May 24, 2017 CSE, Dr.16 disputed their conclusion that 1 “continued to progress steadily in her reading.” Exh. 37 at 5. In furtherance thereof, Dr.16 observed that the child’s CVC word goal was nearly identical to the previous year reiterating her opinion that a phonemic approach to reading was inappropriate for a child with a 26 impairment. As such, she believed a larger classroom which utilized a more appropriate non-phonemic learning strategy would better serve 1’s needs. In this way, 1’s emergent social strengths could be utilized to foster collaborative learning and strengthen self-confidence. Tr. at 716-717. In sum, Dr.16 additionally opined that a program which included a 90-minute ELA block and assimilated reading skills through-out the day (i.e. in areas such as Social Studies, Science and library), would be preferable.

21 additionally testified on behalf of the District. Ms.21 is currently the Assistant Superintendent for Special Student Services. In this capacity, she is responsible for ensuring the integrity and implementation of all special education programs, ranging from kindergarten through high school. The witness is certified as a special education and general education teacher and holds additional administrative and school building leader credentials. The witness has never observed or evaluated 1 but is familiar with the child having spoken with her teachers and therapists. Tr. at 767-768. In March 2016, Ms.21 testified that she prepared a profile for 1’s current 2015-2016 class, at the request of the District Superintendent. Exh. 30. She based this profile upon a review of student IEPs, information from classroom teachers and standardized scores13 available in the record. Tr. at 734, 748. On May 28, 2016 the profile was updated to reflect children who would be placed in this classroom during the 2016-2017 school year. Tr. at 732-736. Based upon this compilation, Ms.21 testified that 1 would have been appropriately placed during the 2015-2016 and 2016-2017 school years. She noted that, like 1, most of the children were functioning at or about kindergarten and first grade levels and required similar academic support. As students were clustered within the 13 BASC scores are not included. same skill level, Ms.21 noted that target instruction would be facilitated, and the teacher would not have to continually differentiate instruction in smaller groups. Tr. at 736, 750-751. In furtherance thereof, she noted that most of the students were working on CVC words, sight words and learning to segment phonemes. Intellectually, the witness indicated that the students fell at or about 1’s cognitive level. There were no behavioral or management needs with any students in the class and similar to 1, most of the children were receiving 5therapy as a related service. Tr. at 740; Exh. 30. At the time of this profile, only nine students were enrolled in this 12:1:1 class, a class which had demonstrated a stable enrollment in previous years.

The witness briefly described the pupil: personnel class paradigms offered within District and indicated that placement was determined by the child’s needs in context with the least restrictive environment. Tr. at 763. While more restrictive 8:1:2 classes exist within District, these classes serve a more medically fragile or communication impaired population. Tr. at 770.

The Parents’ Case and Summary of Witness Testimony

Marcy 20 testified on behalf of the Parents as lead witness. Ms. 20 is the Director of 4 where she has been employed for approximately seven years. Ms. 20 is certified to teach special education and is additionally credentialed in New York State as a school administrator and supervisor. As Director of 4, she is responsible for a student enrollment of 38 children. As an average, each class of eight is staffed with three adults, two general studies teachers and one REDAC studies instructor. Tr. at 923-924. While much individualization occurs, the

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administrator testified that each classroom unites for morning meeting, lunch, recess and group read-aloud time at the end of the day. Tr. at 818. The witness noted that although 4 is sited within the REDACTED School District, she did not have any contact with them or request related services. Tr. at 912.

Ms. 20 described 4 as a special education school which is hosted by the 25 (hereinafter “25”), a mainstream private school. Tr. at 798-799. Religious instruction and prayer are part of its curriculum, although students may opt out of these classes depending upon need and/or parent preference. In 1’s case, her Parents elected to incorporate the religious and cultural component of 4 into the child’s schedule, although aware that doing so might occur at the expense of more academic instruction in reading and math.

Describing the campus at 25, the witness that there are approximately 1200 students in the host or “partner” school which includes several buildings. 25 services a mainstream population from nursery through eighth grade. Similarly, 4’s student population also ranges from first grade through eighth. Tr. at 806-807. She noted that her students fall into three categories, to wit: those with cognitive disabilities, those with learning differences and those with social-emotional challenges. Children are assigned to classrooms by chronological age and functional level, within a three-year range. Tr. at 810. The witness noted that almost all children receive speech and 28therapy. Approximately 80 % of the day is non-sectarian. Tr. at 825-826; Exh. G. During the 2015-2016 and 2016-2017 school years, science and social studies were not offered to 1 as these courses did not fit into the child’s schedule. The student did, however, receive social studies instruction during the 2017-2018 school year. Tr. at 950-952.

Ms. 20 noted that the School employs a full-time psychologist and additionally offers social skills intervention through the services of a part-time social worker. Similarly, art and music therapy are available. Teachers are generally required to possess special education certification or, at a minimum, be finishing their master’s degree. Professional development is encouraged and, at times, underwritten by the School. Tr. at 872. Many of its teachers are trained in PAF14 while others use the Wilson methodology and/or attend literacy instruction classes at the REDACTED School. Additional in-service training is offered, including bi-weekly staff development and weekly team meetings.

On May 13, 2015, the Parents completed an application to 4 for admission during the 2015-2016 school year. Exh. D. The witness described 1 as a friendly child with conversational skills that are best observed when the child is familiar with the underlying content. Specifically, Ms. 20 noted that 1’s social skills were a relative strength for the child. However, as conversation became more sophisticated, she struggled cognitively to maintain the dialog. Tr. at 946.^[1] was accepted by 4 based upon the 11 neuro-psychological evaluation. The witness was uncertain as to whether she possessed any documentation from the District but believed she had reviewed 1’s

IEP. Tr. at 937. As a result of the initial admissions information, a CSP developed for the 2015-2016 school year. In 1’s case, progress would be measured through informal assessments and simple worksheets. Tr. at 884-

886. Exh. J. 872.

On admission, the witness described a child with pre-academic skills and significant deficits in the areas of phonemic awareness and language. Ms. 20 added, “So 1 was a very - even to say beginning reader might be pushing it. She was really at the very beginning of reading instruction . . . with many children, we need to layer a phonics-based curriculum, which 1 is not even up for discussion . . .” Tr. at 877-878. She noted that the child frequently became overwhelmed by peers whose achievements surpassed her own. When this occurred or when

14 Preventing Academic Failure made significant progress in this area, socializing more appropriately with peers during lunch and practicing the skills inherent in developing friendships. Although an inclusion experience occurs once a week in the form of a social skills group as well as during an adult facilitated lunch period, the witness indicated that recess was not an inclusion experience during the 2015-2016 school year. Tr. at 892, 894.

Having thus testified, Ms. 20 noted that 1’s inclusion opportunities were limited by the child’s 27 and the anticipation of failure. Tr. at 899. During the 2015-2016 school year, Ms. 20 testified that “1 did not “end up with any continuous [inclusion] experience.” Tr. at 927. During the 2016-2017 school year, 1 continued to lunch in her classroom with peers and had some limited recess experience within an inclusion setting. During the 20172018 school year, 1 participated in 4’s lunch buddy program in the psychologist’s office. She additionally participated in an unstructured mainstream recess with the hope that the child’s “lunch buddies” would engage socially with 1 Tr. at 927-931.

Describing 1’s classroom, Ms. 20 observed that there were three teachers assigned to 9 children, inclusive of 1 Chronologically, the students were profiled similarly, and all exhibited global delays as either first or second graders. The witness noted that 1’s classes have consistently been comprised of two grade levels. Tr. at 945. As instruction occurs, children are assigned to small group “centers” within the classroom. Moreover, as students are pulled out for related services, pupil: personnel ratios may be further enriched. In furtherance thereof, the witness observed that 1 had four push-out therapy sessions per week in both speech and 28therapy. Additional services were offered in push-in format.

1’s reading and math instruction occurred individually or in a group of two. Tr. at 900. Ms. 20 noted that the child progressed very slowly, regressing on occasion and requiring a great deal of individualized instruction. She frequently resisted difficult assignments and, “she didn’t seem to even grasp what reading was for.” Tr. at 901. As the year progressed, the child’s comprehension skills strengthened and 1 was able to answer literal questions about the material. Although efforts to educate 1 in a larger group were considered, skill-based instruction such as reading or math had to be presented individually for both academic and emotional reasons. She noted that phonics was a critical skill for 1, a child who struggled with rhyming and distinguishing sounds.

Nevertheless, aware of 1’s 26 disability, Ms. 20 opined that a phonics-based reading strategy was not necessarily contraindicated. Moreover, knowing that an audiological report had recommended an 27 unit, Ms. 20 testified, “That was a big question, as to whether or not that should be implemented, specifically in this setting, which is a very small setting, with one-to-one learning and at that point, it was decided that it should not be, or that she didn’t need it necessarily in that setting.” Tr. at 966. Ultimately this decision was made by 4 and the Parents although Ms. 20 did not know the District had, in fact, adopted this recommendation. Rather, the witness opined that 1 had not required an 27 unit to make progress during the school year as instruction was delivered in a small setting with direct teaching. Tr. at 965-966, 994; Exhs. 40, 41, 46. Ultimately, the child’s level of 27 diminished and during the 2017-2018 school year, a second child was added to 1’s reading and math instruction. Tr. at 902.

Referencing 1’s 2016-2017 CSP, Ms. 20 indicated that 1 remained in a 9:3 classroom paradigm and progressed from non-reader to reader status. Exh. Q. Similarly, the child began to add and subtract, gaining a sense of what numbers signify. Although she opined that 1’s social skills fell at the higher end of the group, she noted that her academic skills were closer to the bottom. As a result, reading and math instruction continued to be offered in individualized or small group format.^[15]

During the 2017-2018 school year, Ms. 20 testified that 1 began to use contextual cues in reading as a way of facilitating comprehension and suggesting words when decoding skills were inadequate. Tr. at 906; Exh. X. The child also continued to add sight words and phonetically irregular words to her reading inventory. Tr. at 906. More significantly, Ms. 20 testified that the child’s goals had moved from CVC sounds to words with blends. Although 1’s instruction started off as an individualized service it eventually expanded to a group of two. Using the Stern math program, 1 continued to work alone with an instructor, but was now learning to manipulate numbers up to twenty. In addition, the child was learning how to measure and count coins. Tr. at 908.

In sum, Ms. 20 testified that 1’s goals were intertwined with the child’s levels of 27. As 1 easily became anxious when academic demands were increased, Ms. 20 testified that it was always necessary to draw a fine line between adding new skills and maintaining 1’s level of comfort. Tr. at 920. At times, 4 has had to scale back instruction and to re-introduce the individualized paradigm for reading and math. Tr. at 922. On other occasions, there may be limited retention of skills that were ostensibly mastered. Tr. at 977-978. By keeping 1 motivated and maintaining her self-esteem, the child has become less risk-averse and more likely to work beyond her comfort zone. As a result, 1 made slow, but steady progress, an opinion Ms. 20 based upon 1’s cognitive disability and 4’s informal assessments. Tr. at 980.

22 additionally testified on behalf of the Parents. She is currently employed by 4 as a special education teacher and has been employed there for five years. She holds a master’s degree in Early Childhood Education and is licensed to teach both general and special education in New York State.16 Tr. at 1008; Exh. K at 9. Although the witness has multiple certifications, she has only been teaching formally since 2012. Ms.22 has known the student since 2015 when 1 became her student for her second grade 2015-2016 school year. She described a classroom paradigm in which three master’s level teachers were present for the entire day along with approximately eight or nine children. Tr. at 1019. Twice a week, a group push-in 5period was incorporated. Additional music therapy and an adaptive 28 education led by an 28therapist supplemented 1’s schedule. Tr. at 1013-1014; Exh. G. The witness denominated the portions of 1’s schedule which were religious in nature and acknowledged that Hebrew reading instruction was oriented towards being able to read from a prayer book. Tr. at 1014-1016. This academic structure remained relatively intact during the 2015-2016, 2016-2017 and 20172018 school years.

Ms.22 described a child who, at the onset of the 2015-2016 school year, approached academic tasks fearfully and would shut down despite teacher encouragement. Tr. at 1019. Nevertheless,^[1] demonstrated strong social skills, was expressive and exhibited relative strengths in memory. Tr. at 1070. In general, the child was viewed as sweet and likable. In reading, the witness noted that 1 was essentially a non-reader who demonstrated difficulty 26 phonological cues. Tr. at 1022. In math, the child’s skills were similarly limited. The witness observed that plan was not in place as of the beginning of the 2015-2016 school year as September and October constituted an assessment period to determine where the child’s skills “hold academically and behaviorally.” Tr. at 1040. As a result, there was no CSP until November.

Having so testified, Ms.22 noted that not all goals were written and that some academic goals could be developed in September with the assistance of her direct supervisor and other classroom teachers. Tr. at 1042-1045; Exh. J at 6. Finally, as 1 was functioning at a very basic level, the witness observed that the child’s academic needs were very clear. Tr. at 1055-1058. Nevertheless, she believed “someone” from 4 had spoken to personnel from 1’s prior public-school placement although they did not participate in the CSP meeting. Similarly, the witness did not recall reviewing any of 1’s prior records but may have seen the Parents’ private neuro-psychological evaluation performed at 11. Tr. at 1065; Exh. 15. Ms.22 did not review the BASC prior to working with 1 nor had she seen any of the District’s IEPs for the 2015-2016 school year. Tr. at 1072; Exh. 20.

With regard to the 2014-2015 IEP, Ms.22 did not feel it had been important to view this document as it did not reflect the child’s progress towards meeting her IEP goals during the 2014-2015 school year. Tr. at 1086. Likewise, she had not viewed 1’s 2014-2015 report card and opined that it was not useful, given the availability of other sources of information.^[17] Tr. at 1086; Exh. C. Finally, while the witness acknowledged that the 11 information would have been helpful, in part, she testified as follows:

Q: And would this information be important when putting together a student’s comprehensive plan when determining their goals and objectives for the school year?

A: I don’t think so. I think that, for sure, the Wechsler is an intelligence test and when you are making goals, you are working on academic achievement, you can’t improve someone’s intelligence. . . You are working to teach them skills and hopefully improve their abilities and will influence their intelligence, but we’re working with abilities, not intelligence . . . It’s important to understand a child’s learning style . . . A lot of that can also be gleaned from observation and a quick assessment that you do of them.

As the year progressed, Ms.22 testified that 4 personnel began to believe 1 suffered from a 26 problem as the child did not always follow or seem to understand directions. Audiological testing was recommended and completed. As per Ms.22, the Parents obtained an independent audiological report suggesting that 1 had a minimal 26 loss which was unlikely to affect her within the classroom. Rather, the loss would have an impact upon 1 when surrounded by large numbers of people and/or significant amounts of ambient noise. An 27 unit was not requested nor were any related audiological services offered. Tr. at 1090-1091.

Finally, the witness acknowledged that, depending upon the day, the child received 1:1 instruction for approximately one third of the secular day. Although she did not miss class time during math and reading, as the rest of the class was similarly engaged, other related service pull-outs would have an impact on class time, a situation which could be remedied easily. Tr. at 1103-1104.

23 additionally testified on behalf of the Parents. She has been employed at 4 for the past two years, serving as 1’s classroom teacher during the 2016-2017 and 2017-2018 school years. Tr. at 1114. The witness described a classroom in which four adults were present, including two secular teachers and two REDAC instructors. She

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described the class routine for the 2016-2017 school year, noting that following an initial prayer service, a morning meeting is held. During this time, active listening and engagement are encouraged and a sense of community is developed among the children. Tr. at 1115. As the day continues, children may be pulled out of the classroom, separated into academic groups or offered individual instruction. Lunch is utilized as a social skills opportunity which includes teacher facilitated discussion. A second group period may be offered in the form of a read-aloud or language therapy group. Finally, circle time is used to prepare the students for the following day and to summarize the day’s events. Exh. N.

During the 2016-2017 school year, there were nine children in 1’s class, aged seven to ten. The witness described

1 as a charming child who enjoyed school and was interested in her peers socially. Nevertheless, the student required one-to-one instruction in reading and math while other subjects were taught in small groups of no more than three. Tr. at 1118. These groups were intentionally kept very small as 1 was anxious about her academic abilities and would compare herself to others. However, even during whole class activities such as morning meeting, a teacher would sit next to 1 in order to support her participation.18 Tr. at 1119. During the day, 1’s instruction was broken into small bits. The child was given frequent breaks and when materials appeared to overwhelm her, easier tasks were reintroduced in order to build up self-confidence. Utilizing leveled Scholastic guided reading and Preventing Academic Failure (hereinafter “PAF”), a multisensory approach to phonemic awareness. Ms. REDACTED testified that 1 had mastered many of the reading goals originally developed for her during the 2016-2017 school year. Tr. at 1124; Exh. Q at 6. Specifically, she noted that 1’s leveled readers progressed from levels B and C to levels D and E by the end of the year. Tr. at 1125. Beyond this, Ms. Rubenstein noted that the child had “gone from reading very simple CVC words to looking at full sentences in a book and being able to decode a word you haven’t seen before or a longer word or recognizing

18 i.e. rephrasing questions, preparing answers, scaffolding one of the sight words . . .” Tr. at 1126. As 1 became more confident with her skills, she was more likely to selfcorrect or break down a word without shutting down.

With regard to 1’s math skills during the 2016-2017 school year, the child’s teacher testified that 1 mastered the concept of equality in addition to other basic math concepts and number facts (eg. learning that 0 stands for no objects, comparing quantities, using models to demonstrate pairs of numbers that add up to ten). Ms. Rubenstein testified that using Stern Math and the Jump Math curricula, 1 had progressed to working on word problems by the end of the 2016-2017 school year. Having so testified, Ms. REDACTED opined that 1 would not make progress in a larger group of instruction as the child would constantly be anxious about her abilities relative to other children in the group. As a result, she would not ask for help or attempt a difficult task. Tr. at 1128-1129; Exh. Q at 8.

With regard to the 2017-2018 school year, the witness described a classroom in which seven children and three teachers were assigned to 1’s class. Ms. REDACTED continued to review blending sounds when presented with three letter words. In addition, the student was presented with more phonetically irregular words. Comprehension goals were added as the child mastered more complex text. Using the Scholastic leveled readers, 1 was now reading at level G with support. As her enthusiasm for reading increased, the child’s ability to encode words developed as did her ability to provide a written answer to a question. By February 2018, 1 was assigned to a reading group of two, including herself. Tr. at 1132, 1135-1136. At this time, the witness observed that 1 had become more confident in her skills and could now benefit from academic instruction with a second child. In math,^[1] started the 2017-2018 school year with a number fact foundation up to ten. By the end of the school year, the child was developing competence with number facts up to twenty with a greater focus on subtraction.

Beyond this, the child’s level of confidence had developed and 1 felt more comfortable in social settings. While psychological assessment was not particularly important to her and she did not utilize its contents when preparing goals for 1’s upcoming school year. Tr. at 1177. Rather, she felt it more beneficial to discuss the child with prior teachers. Likewise, she opined that the School District’s IEP was not relevant, in any way, to her instruction of 1 Tr. at 1194. By November 2017, the witness reported that she had read the child’s neuro-psychological report, acknowledging that this kind of report did, in fact, include important information about the child. Tr. at 1177.

Beyond this, she acknowledged that the CSP’s goals had not been developed with an eye toward objective measurement. Rather, reports of progress were based upon her classroom observations and anecdotal data. Tr. at 1158, 1161. Ms. REDACTED , in fact, agreed that some of the child’s goals from the 2015-2016 school year had been incorporated a second time on the child’s 2016-2017 CSP. Tr. at 1159-1160; Exhs. J, Q.

Finally, Ms. 24 testified that, at some point during the 2016-2017 school year, she learned that 1 had a 26 deficiency. Nevertheless, she opined that the child’s 26 loss was only a factor within large group settings such as a lunchroom or gymnasium. She testified that the Parents had not requested an 27 unit nor did the school provide one during the 2016-2017 and 2017-2018 school years. Tr. at 1181-1182. Although the student was progressing, Ms. REDACTED could not state with any certainty how much 1 would have benefitted from an 27 unit. She testified, “Of course, that’s the kind of thing I’m sure she would benefit even more from . . .” Tr. at 1195. However, even without the 27 unit, Ms. REDACTED testified that 1’s progress had been very significant, notwithstanding its slow and steady pace. Tr. at 1183.

2 is the child’s father. Both he and his wife hold doctoral degrees in psychology and are licensed by New York State as school psychologists. Dr. 2’s professional responsibilities include performing independent educational evaluations for local school districts and serving as Clinical Director for the REDACTED Center. He has additionally published a book chapter in the American Psychological Association’s Handbook of Clinical Psychology. Tr. at 1256. His wife, Dr. 119 is additionally employed as a school psychologist for a local school district. Tr. at 1209-1211. While Dr. 2 is not credentialed or licensed in education, the bulk of his experience has occurred within the public-school setting. Tr. at 1333. Dr. B. provided a brief educational history of his daughter, 1, noting that her disability was apparent at an early age. As a result, 1 commenced center-based early intervention services by approximately age one. Thereafter, 1 began pre-school at the 24 (hereinafter referenced as “24”) where she remained until kindergarten. Following REDAC , 1 was placed within District where she remained for both kindergarten and first grade.

TED

19 The record indicates that Dr. 1 is alternatively referred to as Dr. 30 During the 2014-2015 school year, 1 attended first grade at the A Elementary School where she was assigned to 8’s self-contained classroom. The Parent noted that his concerns began when he realized that 1 was not retaining the educational materials which were being presented. Moreover, he was disturbed that his daughter was not making the progress of which he believed she was capable. Tr. at 1215-1216. Although Dr. 2 did not discuss these concerns personally, he was aware that his wife had raised these issues with the school.

On May 11, 2015, the CSE convened to address 1’s educational program for the 2015-2016 school year. Dr. B. testified that everyone agreed at this time that the child’s prior District placement was inappropriate and 1 was offered a smaller classroom with a 12:1:1 pupil: personnel ratio. Tr. at 1219-1220. Although the full extent of the child’s lack of progress was not clear to the Parents at this time, they were aware that 1’s speech was poor and that she lacked phonemic awareness.

Reviewing the IEP at this time, the Parent opined that 1’s needs were not being addressed individually. Rather, they were being assessed within a rigid District protocol. Tr. at 1223. As a result, the Parents began to investigate both New York State approved and non-approved private schools. On May 13, 2015, they completed an application for admission to 4. Exh. D. They did not furnish the District with a ten-day notice as, “it wasn’t at all clear that this [4] would be the final place where she would end up.” Tr. at 1340-1341.

That summer, when the end of school first grade report card was sent, Dr. B. testified that he was very upset by 1’s lack of progress. Exh. B. Her scores fell at the very bottom of the class and he did not feel she had made any significant educational gains. In furtherance thereof, the Parents obtained a private independent neurological assessment from 11 in July 2015. Exh. 15. They did not ask the District to underwrite the expense of this evaluation, nor was there any discussion with the District as to the need for such as assessment. On crossexamination, Dr. 2 testified that he had selected these providers and was confident in their abilities to conduct a neurological examination. Tr. at 1318-1319. He did, however, disagree with the clinician’s statement regarding 1’s performance relative to her cognitive abilities. Tr. at 1321-1323; Exh. 15 at 2.

Addressing the 11 report further, Dr. 2 additionally indicated that scores on the A,B and C instruments for home and school assessment. As a result, there might be no evidence of an 27 disorder when querying the Parents although this might well have been reflected by teacher report. Although asked to complete the forms, Ms. 7 did not do so. Tr. at 1325-1329.

On August 19, 2015, the Parents submitted a 10-day notice to the District to which the District responded by letter dated September 1, 2015. Exhs. 11, 12. Thereafter, a second CSE convene for the 2015-2016 school year was held on September 8, 2015. At this time, the Parents presented the 11 report which had been received that day. The witness reported that the District Chairperson reviewed the report and concluded that it was consistent with the District’s own evaluations and offered no new information. Beyond this, a great deal of discussion addressed the report’s statement, “. . . the most recent assessment indicated borderline intellectual abilities (E Full Scale IQ = 70). 1’s academic skills have been largely consistent with her intellectual abilities, with most scores also within the borderline range.” Exh. 15 at 2. For one, Dr. 2 opined that this statement was a reference to the child’s lack of a learning disability. For another, he believed this was a cynical remark which could be casually and indifferently employed to justify a child’s lack of improvement.

Nevertheless, the IEP generated on September 8, 2015 recommended an additional period of small group speech; one (twenty-minute) period of small group reading instruction (2:1) and one twenty-minute period of math instruction each day. Exh. 18 at 1. It additionally called for more flexibility with pull-out/push-in services so that 1’s instructional time within the classroom would be minimized where possible. While the Parent remained concerned about the limited individual instruction, he offered to observe the classroom.

On September 11, 2015, Dr. 2 visited 1’s classroom. In a subsequent letter, the Parent expressed various concerns about the proposed class.20 Exh. 16. He noted that the coursework and classroom materials were too advanced for his daughter, the class size too large, the children performing on too high a level and the opportunity for individual instruction too limited. Ibid. In response, the Parent was assured that the classroom materials which had been on display were “polished” samples, prepared in anticipation of parent-teacher night. They did not represent the actual work of the children. Nevertheless, Dr. 2 questioned this as the handwriting samples were different as were the drawings. Tr. at 1249-1250. Again, Dr. 2 opined that the District had improperly relied upon the lone statement in the 11 report regarding 1’s progress and her cognitive abilities as a means of justifying the minimal progress she had made. Tr. at 1243-1244; Exh.^[20] at 1, 4. Although no changes were made to the November 17, 2015 IEP, the Parent was unaware of this and testified that he did not receive the November CSE document until January 13, 2016. Exh. 25. Upon review, the Parent opined that much of the comments section was exculpatory in nature and did not actually reflect the CSE proceedings. Tr. at 1247, 1346-1347; 1369-1372; Exhs. 22-25. In his letter of February 29, 2016, Dr. 2 reiterated his concerns regarding the classroom. Exh. 25. By letter dated April 11, 2016, the District responded. Exh. 26. Ultimately, 1 remained at 4 during the 2015-2016 school year.

On March 17, 2016, the Parents re-enrolled 1 at 4 for the 2016-2017 school year. As seats are limited, the Parent testified that they wished to secure a placement while remaining open to the District’s recommendations. Thereafter, on June 2, 2016, the CSE convened to address 1’s educational planning for the 2016-2017 school year. Exh. 29. At this time, the classroom pupil: personnel ratio remained the same although the child’s small group reading instruction time was increased by ten minutes and the service was now offered twice daily. Likewise, small group math instruction would now be offered daily for 30 minutes. Tr. at 1268; Exh. 29 at 1. In contrast, 4 personnel participated and shared their view that 1 needed individual instruction “most of the day.” Tr. at 1273. As previously, the Parent reiterated his concern about class size and insufficient individualized instruction for 1 Tr. at 1275. With regard to mainstreaming and based upon 1’s previous experience in District, the witness noted that mainstream art was not provided and mainstream lunch was little more than a segregated lunch table within a larger cafeteria environment. Tr. at 1276.

Following this meeting, Dr. 2 requested a class profile which was ultimately provided in August by 21. Exh. 30. Reviewing the July 28, 2016 class profile, Dr. 2 noted that the document contained many errors and was not very useful. Tr. at 1349-1349, 1357. For example, the G Scale - II (hereinafter referenced as the “F-II”), does not have a full-scale IQ score. Rather, the test references a F (hereinafter “GCA”) score. The witness testified that it was very difficult to compare the E scores with F-II scores as the F-II did not include working memory and processing speed. Tr. at 1272.

The witness further observed that two of the students tested on the F-II described in the class profile were described as English language learners. Nevertheless, one student was tested on the F-II, an instrument which is used with children who speak English well; that child’s cognitive abilities tested at “the upper end of low” normal. Given the ambiguity of the child’s English language proficiency, Dr. 2 stated that he could not draw any conclusions regarding the appropriateness of 1’s academic placement with that child. The remaining child was, in fact, tested on the Special Non-Verbal Composite (hereinafter “SNC”). That child, however, tested in the average range of intelligence, a fact which was concerning to the Parent. Tr. at 1359. Following his review of the class profile, Dr. 2 remained concerned that 1 would not be receiving the individualized reading instruction which had been recommended in the 11 report. While his daughter would receive 30 minutes of reading instruction, twice per day, in a small group of two,^[21] he did not believe this could adequately meet 1’s needs. Exh. 29.

As a result, and based upon the information provided, Dr. 2 opined that the class profile was inconsistent with that of 1 Tr. at 1351, 1353. While he could not compare cognitive levels, Dr. 2 acknowledged that the management needs of the children were similar to those of 1 Nevertheless, he opined that 1’s classification, her academic and related service needs were totally at odds with the remainder of the class.

In January 2017, the Parents again registered early at 4 in order to reserve a seat. Exhs. E, S.T. On March 27, 2017 the Parents submitted a request for transportation pursuant to the District’s notification deadline of April 1, 2017. Again, the Parents noted that they would be placing 1 at 4 subject to the District’s provision of FAPE in its 2017-2018 IEP. Tr. at 1428; Exh. 31.

By letter dated March 29, 2017, the District requested permission to evaluate 1 The Parent acknowledged that he inadvertently signed but failed to mail his executed consent until May 2017. Tr. at 1385-1388; Exh. 32, 35. As the Parent testified that another independent psychological assessment was contemplated, he asked the District to clarify which tests their personnel would perform in order to avoid practice effects on either his or the District’s testing. Tr. at 1281-1282. Dr. 2 testified that he never received an answer from the District and as a result, the May 24, 2017 CSE did not possess updated assessments. Exh. 39. Although a psychological might not have been performed, based upon the Parent’s reference to a private psychological testing, he did not believe that the District was relieved of its responsibility to conduct all other tests which form the basis of a triennial review. Tr. at 1388, 1411-1412; Exh. 34. Having thus testified, he did not believe practice effects occurred in 28 or 28therapy.

On June 5, 2017 the CSE again convened for the purpose of developing an IEP for 1’s 2017-2018 school year. At or about this time, the District was advised by the Parent that an audiological assessment recommending an 27 unit had been performed. Exhs. 40, 41. Notwithstanding this report, 4 personnel believed the 27 unit was unnecessary as their classroom was quiet and 1 received a great deal of 1:1 instruction. As a result, a unit was never obtained. Moreover, the Parent was unclear as to how he could obtain these services and it appears that 4 did nothing to educate him as to their availability through the District of service. Tr. at 1284-1286. As a result, he did not pursue the use of an 27 unit as he believed it could only be provided at his own personal expense. 4 did not advise him otherwise. Tr. at 1398-1400.

In sum, Dr. 2 testified that his daughter had made meaningful improvement at 4. Specifically, she was now able to demonstrate one-to-one correspondence, spell and write simple words independently, utilize decoding strategies and recognize many sight words. Beyond this, 1’s handwriting had improved as had her tolerance for frustration and 27. Tr. at 1290-1291.^[22]

The School District’s Position

The School District maintains that the IEPs of May 11, 2015, September 8, 2015 and November 17, 2015 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). Exhs. 2, 14, 20. Beyond this, the District asserts that the Parents’ claim for the 2015-2016 school year must be dismissed as it is time-barred by the statute of limitations.

The District further asserts that -as memorialized by its 2016-2017 and 2017-2018 IEPs- the child was duly furnished with FAPE. Exhs. 29, 39. 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]) and in “light of that child’s circumstances.” Endrew F. v. Douglas Cty Sch. Dist. Re-1, 137 S. Ct. 988 (2017).

The District additionally maintains that the 4 placement is not an appropriate placement for the student as its program is unduly restrictive and does not comport with the notion of furnishing services within the least restrictive environment. It further argues that 1’s classroom peers do not reflect an appropriate profile for the child. Beyond this, the District maintains that 1 has made minimal progress which is virtually unquantifiable as the School does not utilize standardized test instruments to measure progress. The District additionally asserts that 4 is not an appropriate placement as it is primarily a religious school, absent significant secular studies. IHO Exh. d.

Finally, the District maintains that the Parents have not met their equitable burden and their actions militate against their entitlement to relief.

The Parents’ Position

The Parents assert that the School District stands in abrogation of its duty to provide 1 with a free and appropriate public education for the 2015-2016, 2016-2017 and 2017-2018 school years in violation of the IDEA 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 11, 2015 and September 13, 2015 and November 17, 2015 reflect a number of substantive errors and procedural errors which, in aggregate and alone, compel nullification of the document. Exhs. 2, 14, 20. Specifically, the Parents maintain that the District did not adequately appreciate student’s emotional and academic profile nor did it offer services within a suitably enriched pupil: personnel paradigm. As such, they assert that the District did not offer a program with meaningful goals and sufficiently individualized instruction. Moreover, the Parents maintain that the District’s educational plan did not address the child’s 27, a condition which exerted an impact upon 1’s ability to access an education. Finally, the Parents maintain that 1’s placement reflected an inappropriate student profile. In furtherance thereof, counsel maintains that the School District’s IEPs broadly neglected the student’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with their argument, the Parents contend that 4 constituted an appropriate placement for their daughter during the afore-mentioned school years 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.

Discussion

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

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

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

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

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only retrospreview, 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: It the Parents’ Claim for the 2015-2016 school year barred by the Statute of Limitations? 8 NYCRR 200.5 (j)(i) specifically states: Timeline for requesting an impartial 26. The request for an impartial due process 26 must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial 26 due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title. See also U.S.C. 1415(b)(6)(B).

The operational term in the above-referenced statute is embodied by the words, “. . . knew or should have known about the alleged action that forms the basis of the complaint.” As with other litigation, the statute of limitations is one which protects potential defendants from protracted uncertainty regarding litigation as well as from stale claims which are difficult to defend. By requiring plaintiffs to engage in reasonable diligence in prosecuting their claims, the interests of judicial efficiency and fundamental fairness are promoted (Holden v. Miller-Smith, 28 F Supp. 3d 729, 735 (W.D. Mich. 2014).

I find, ab initio, that the District’s claim regarding the statute of limitations must be denied. Exh. SD C. at 4. In furtherance thereof, I find the facts at bar easily distinguished from Samoza v. N.Y.C. Dep’t of Educ., 538 F.3rd 106 (2nd Cir. 2008) and R.B. v. Dep’t of Educ. of the City of New York, 57 IDELR 155 (S.D.N.Y.)

On November 9, 2017, the Parents filed a Due Process Request. The history follows:

On May 11, 2015 the CSE convened for the purpose of developing a plan for the 2015-2016 school year. Ms.13 testified that the Parents did not express any objection to the recommended 12:1:1 program and that the proceedings were collaborative in nature. Tr. at 141, 144. Similarly, the child’s teacher, Ms. 7, noted that the meeting proceeded amicably and there was no discussion regarding 1’s need for a more restrictive environment. Tr. at 37, 41-42. When Dr. 1 requested certain modifications to the child’s speech program, these were accommodated by the District. In sum, the District had no reason to believe the Parents were unhappy with its placement.

Nevertheless, two days later, the Parents applied to 4 and the child was accepted to their school on May 19, 2015. That summer, upon receipt of 1’s report card, the Parent testified that the extent of 1’s delays became painfully obvious. In order to gain clarity into the nature of 1’s disability and her potential, the Parents arranged for an independent psychological assessment at 11/11 Medical Center ultimately conducted on July 15, 2015 and July 22, 2015. In the course of these evaluations, the Parents, both educational psychologists, consulted with the neuropsychologists who had performed the 11 assessment. Based upon their conversations, the Parents believed 1 would be unable to access FAPE through the District’s placement.

By letter dated August 19, 2015 the Parents submitted their notice of unilateral placement to the District. Exh. 11. Notably, the Parents’ letter of August 19, 2015 states, “. . . After careful consideration of the IEP and consulting with several professionals, including a neurologist, we are rejecting the District’s program recommendation for our daughter, 1, for the 2015-2016 school year.” Exh. 11 at 1. The letter continued, “. . . Our rejection is based, in part, upon the district’s failure to provide our daughter with a free and appropriate public education during the 2014-2015 school year” and denominated several specific educational concerns.

Notwithstanding their objections to the May 11, 2015 IEP, the Parents remained proactive and requested a CSE reconvene for the purpose of addressing the new neuro-psychological assessment. While clearly Dr. 2’s August 19, 2015 letter reflects a rejection of the District’s IEP, the Parents actions nevertheless demonstrated an interest in continuing the dialogue between the CSE and themselves.

On September 8, 2015 the CSE reconvened to address the content of the 11 report. While the Parent reiterated the same concerns as those in his August 19, 2015 letter, several significant modifications were now made to 1’s

IEP. Although the centerpiece of the program remained the 12:1:1 paradigm, the child’s classification was changed, an additional period of 5therapy incorporated into 1’s week and greater flexibility provided in terms of location of related services. Most importantly, small group reading and math instruction [reading: 1 x 20 minutes, 2:1 ratio per day and math: 1 x 20 minutes 2:1 ratio per day] were now integrated into the child’s daily schedule.

Although the Parent remained opposed to the lack of individualization in 1’s IEP23, he continued to engage with the CSE process, hoping to incorporate the 11 recommendations into 1’s IEP and participating in a classroom observation on September 11, 2015. On November 17, 2015 the CSE again met at the request of the Parents who did not believe the 11 report had been adequately addressed at the September 2015 meeting. Exh. 20 at 1.

Indeed, while unilaterally placing 1 at 4, Dr. 2 repeatedly indicated that his placement remained subject to the District’s offer of FAPE and his actions reflected a willingness to work collaboratively with the District. Clearly, notwithstanding his communications, Dr. 2 had not closed the door upon CSE deliberations and was still hoping that greater individualized academic instruction could be offered, even if the 12:1:1 paradigm remained. On November 17, 2015

23 This was the Parents’ primary objection among several additional concerns regarding class profile and instructional level. , the CSE again met to discuss 1’s IEP. Witnesses testified consistently that the Parents were active participants at each CSE meeting. Tr. at 163.

Although the documentation indicates that the Parents believed the District could not offer FAPE, they continued to work collaboratively with the CSE up until November 17, 2015 and even beyond. While the District suggests that the accrual date for unilateral transfers commences when the child is unilaterally placed, this ignores the scenario in which a parent continues to work cooperatively with a CSE in the hope of eventually tailoring a mutually agreeable IEP. Thus, the facts are inconsistent with both Somoza v. N.Y.C. Dep’t. of Ed., 538 F.3d 106 (2nd Cir) and R.B. v. Dep’t of Educ. of the City of New York, 57 IDELR 155 (S.D.N.Y.)

The Parents’ Due Process Complaint was filed November 9, 2017. In the facts, sub judice, the Parents’ claims were not “complete and present” until the CSE process had been exhausted for the 2015-2016 year (Somoza at 116). Although the District argues that the date of a unilateral placement establishes, per se, the date a parent “knew or should have known about the alleged action that forms the basis of the complaint,” such an approach would simply establish a disincentive for Parents to continue working cooperatively once a private placement has been secured. Moreover, the confusion created by school enrollment applications, dates of acceptance, tuition contracts and actual attendance dates would only muddle the “knew or should have known” criteria. Finally, “back-up” placements are frequently reserved early, pending a public offer of FAPE. Clearly, the period of accrual cannot ripen until Parents have unequivocally abandoned the CSE process. Accordingly, I find that the claim for the 2015-2016 school year is not time-barred.

Point II: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), were the May 11, 2015; September 8, 2015 and November 17, 2015 IEPs reasonably calculated to confer an educational benefit upon 1 during the 2015-2016 school year?

The Parents argue that the District’s educational plan did not adequately incorporate the recommendations of their private evaluations. IHO Exh ii at 15-16. Moreover, they maintain that the District’s IEPs are substantively defective as they describe generic goals which are both unresponsive to the child’s deficits and unquantifiable. Finally, the Parents assert that the District’s programming did not offer adequate, targeted one to one instruction and placed 1 with students whose profiles were patently unsuitable.

A. Sufficiency of evaluations and the failure to address 1’s 27

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).

The IEPs for the 2015-2016 school year reference extensive evaluations and assessments. The May 2015 IEP includes, at a minimum, standardized measures on the F, G, H, I, KJ and K Articulation scores. Additional assessments reflect the CSE’s consideration of an education update and a 2013 psychological evaluation in addition to various report cards, writing samples, 28and 28 therapy summaries, among other assessments. Three school psychologists participated, both Parents as well as District Representative 13. Beyond this, both observational and clinical input was obtained from the child’s teacher as well as her speech therapist. All testing was current and reflected both strengths and weaknesses of the child, giving a global view of 1’s ability to function within the classroom.

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)). Under these circumstances, I find that the 2015-2016 IEPs sufficiently possessed and considered appropriate evaluations and assessments for 1 Although there is a claim that 1’s 27 was not addressed within District, the record does not reflect the presence of any 27 at this time. Exh. A at 13. Rather, issues regarding distractibility, inconsistent motivation and frustration tolerance appear. For example, while the child’s 28therapist noted that 1 required “constant refocusing and redirection,” the child’s 5therapist indicates that 1 “put forth excellent effort” during sessions. Exhs. 3, 5. Both are individual services; neither refers to 27. Similarly, Ms. 7, 1’s teacher, completed the middle marking period report card with an indication that while, “1 consistently shows above average effort . . . she requires guidance to complete tasks.” The report reiterates 1’s need to strengthen her self-confidence. Exh. 6 at 2. The educational update dated April 1, 2014 likewise indicates that 1 will seek teacher guidance or guess rather than attempt to decode independently. None of these reports suggest the presence of a clinical 27 which substantially interferes with the child’s ability to access an education.

Significantly, psychologist REDACTED 19, Psy. D. stated, “She did not appear anxious [during testing] . . . She did display some frustration; however, her level of frustration was appropriate for her age. With prompting and coaching much of the frustration was alleviated and she made another attempt . . . No behaviors were observed during this examination that would interfere with 1’s performance.” Exh. 10 at 2. Again, reviewing the 11 report, the issue of clinical 27 does not appear. The 11 examiners noted that 1’s mood was “euthymic and affect was appropriate. . . 1 was generally cooperative and compliant, although she demonstrated signs of fatigue during the end of the session and was inattentive during more difficult tasks.” In contrast, “her frustration tolerance was significantly reduced during the second assessment session and 1 often refused to cooperate with tasks that were difficult . . .” Exh. 15 at 3. Although the child was clearly off-task, 1 was eventually able to complete testing with the assistance of frequent breaks and encouragement. Indeed, it is the child’s frustration tolerance which is a significant issue, one that can easily be addressed by standard classroom interventions within the ambit of good instructional technique. Exh. 15 at 7. The presence of 27, clinical or otherwise, was not a concern. Nowhere in the 11 report is there a recommendation for a functional behavior plan or behavior intervention plan.

Finally, it should be noted that, based upon the Child Behavior Checklist (hereinafter “CBC”) Dr. 1 “did not report any mood or 27 symptoms.” Exh. 15 at 8. These measures, however, reflected the Parent’s completion of the CBC Parent editions, questionnaires which measure behavior observed at home. While Dr. 1 did indicate that her daughter had begun to complain of stomach aches on school days, this is the first indication that 1 was exhibiting avoidance behaviors related to school attendance. Nevertheless, the Parents did not communicate this concern to the School District and the District did not have this report until September 2015. While BASC-2 and CBC test questionnaires sent to the District would have provided more insight into the issue of 1’s school-based 27, these were never completed by Ms. 7. Tr. at 1325-1326. Even so, this is only one piece of the child’s assessment. In fact, the child’s easy adaptation to 11’s testing performed in a strange environment with unknown personnel militates against the notion of 27. Instead, the report reinforces the presence of 1’s poor frustration tolerance.

The record is clear that at no time did the student exhibit persistent dysfunctional behaviors which would warrant a functional behavior assessment or behavior intervention program. Placing her head down upon the table, guessing or closing her eyes are behaviors which can be meaningfully addressed within the classroom utilizing standard special education strategies and techniques. They are not behaviors that place other students at risk or interfere with classroom management and instruction. Under these circumstances, I find no need for a functional behavior analysis or behavior intervention plan. See 8 NYCRR 201.3; 20 U.S.C. § 1415[k][1][F][i]-[ii]; 34 CFR 300.530[f][1][i]-[ii]; 8 NYCRR 201.3).

The Parents did not obtain their independent neuro-psychological evaluation until July 2015 and did not present it to the Parents until September 8, 2015. At this time the September 2015 CSE considered information that included the 11 report. Although the Parent testified that he did not receive the 11 report until this day, the CSE was provided with copies and given an opportunity to review its content. Tr. at 1225.

As in May 2015, the CSE addressed the student's educational and emotional needs, but now did so with the additional benefit of the 11 report. Based upon the 11 report, the Parents now sought a more restrictive environment for their daughter along with more related services. Tr. at 51. In contrast, District personnel opined that the report was largely consistent with that of Dr. 19. Nevertheless, in the spirit of collaborative decisionmaking, significant modifications were made to the child’s IEP. These included a change of classification to multiply impaired, an additional speech-language service per week and greater flexibility in terms of service location and push-ins.

Most importantly, a supplemental twenty-minute period of 2:1 reading and a supplemental twenty-minute period of 2:1 math instruction were integrated into the child’s day. Despite these modifications, the Parents believed the parties did not adequately review the 11 report on September 8, 2015. On November 17, 2015, at the Parents’ request, the parties again convened to address the report at greater length. Nevertheless, the parties continued to differ in terms of 1’s need for a much smaller classroom pupil: personnel ratio. While the neuro-psychological assessment was again reviewed, the CSE did not alter its recommendations. Although the Parent continued to dispute 11’s conclusion that 1’s academic skills were consistent with her intellectual abilities, this is merely one sentence out of a twenty-page report whose recommendations are not disputed by either party. The 2015-2016 IEPs denominated an extensive list of current cognitive and achievement tests. These included both private and District assessments, standardized and observational. In addition to measures of cognitive ability, assessments of 1’s working memory, processing challenges and executive functioning deficits were included. All of this was additionally supplement by teacher and provider report from both District and 4 personnel. Ultimately, I find that the September and November 2015 CSE convenes included ample evaluative material upon which a meaningful IEP could be developed.

Appropriateness of IEP Goals during the 2015-2016 school year

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]). A review of each IEP drafted during the 2015-2016 school year indicates that only parts of these IEPs contain easily quantifiable goals. Unfortunately, goals for reading and math, 1’s most significant needs, were merely restated verbatim from IEP to IEP. Cf. Exhs. 2, 14, 20. For example, the child’s reading goal states, “When presented with a text on 1’s level she will read fluently with accuracy and appropriate rate.” Given the child’s specific deficits with decoding; identifying upper- and lower-case letters; isolating and manipulating phonemes and developing an inventory of functional sight words, a broad statement regarding reading fluency offers little guidance into the child’s specific needs and easily applies to any student in the class. As such, there is little accountability into terms of meeting goals. Exh. 15. Moreover, the IEP does not articulate any short-term goals or specific benchmarks upon which a Parent can rely in assessing their child’s progress. A mere statement referring to 85% success over two weeks does not establish meaningful criteria as to what is specifically being measured or taught.

Similarly, the child’s repeated math goal states, “1 will represent and solve addition problems within twenty, using objects, drawings and equations.” Nevertheless, the District’s Educational update of April 1, 2014 indicates, “1 has struggled with learning how to add and subtract with manipulatives. She does not remember strategies from day to day and needs to be retaught in small groups. 1 does not understand vocabulary such as greater than, less than and equal.” Exh. 9 at 2. Likewise, Ms. 7 testified that 1 had inconsistent knowledge of one-to-one correspondence and did not understand the vocabulary of “more or less, fewer than or as many as.” Tr. at 115. Given these weaknesses, a goal which references manipulating numbers up to twenty without specifically addressing fundamental and underlying math operations is inappropriate and likely unattainable for 1 Although clearly this is a year-long goal, the absence of specific, smaller short-term objectives militates against any overall accountability. Although Ms. 7 testified that fundamental math operations would be addressed by the “umbrella” goal of “representing and solv[ing] problems within 20 using objects, drawing and equations,” I find her testimony prospective in nature. Tr. at 116. Given the intensity of 1’s needs, Ms. 7’s goals are poorly drafted, easily applicable to any student in 1’s class and unquantifiable.

In order to show that a procedural problem is sufficient to constitute a denial of FAPE, a parent must demonstrate that the procedural inadequacy 1) resulted in “the loss of educational opportunity,” or 2) seriously infringe upon the parents’ opportunity to participate in the process of formulating the IEP. In the matter at bar, it is clear that the failure to articulate meaningful goals in both math and reading are clear procedural defects. However, the mere failure to denominate the specifics of this service within the IEP document do not constitute a per se denial of FAPE. E.Z.-L., by her parents R.L. and A.Z. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 6335 (S.D.N.Y., January 24, 2011) and K.Y. ex.rel. T.Y. v. New York City Dep’t. of Educ., 07 Civ. 3199, 2008 U.S. Dist. LEXIS 89827 at *20-21 (E.D.N.Y. July 2, 2008), aff’d 584 F.3d 412 (2nd Cir.2009), cert. denied, 130 S.Ct. 3277, 176 L.Ed. 2d 1183 (2010). See also Burke County Bd. Of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990)].

In the matter at bar, I find that the generic math and reading goals had no impact on the Parents’ ability to participate in the three CSE proceedings which occurred during the 2015-2016 school year. Although the goals are poorly drafted, this did not constitute the essence of their objections. I find that there was a great deal of communication between the parties and the Parents, school psychologists themselves, were not disenfranchised by the inadequacy of the reading and math goals. Exhs. 11, 12, 13, 16, 25, 26. In fact, their unilateral placement letter did not complain about the child’s goals, but rather focused on the need for targeted 1:1 instruction and limited related service pull-outs. While the goals are clearly inadequate, I find that they do not exist as part of a cumulative constellation of defects which impairs 1’s ability to access FAPE. Similarly, I find that the District’s failure to provide a more detailed class profile a de minimis violation, given the Parents’ apparent lack of interest in follow-up.

B. Classroom profile

It should be noted that the issue of classroom profile did not arise until Dr. B. conducted his observation. This issue was not referenced in his August 11, 2015 letter advising the District that he would be unilaterally placing

1 at 4. Exh. 11. Following the Parent’s classroom observation, however, he clearly expressed concern about the students’ apparently higher achievement levels. He based this concern upon work samples in the classroom and the children’s ability to successfully play a number game they had mastered the previous year. While the teacher assured him that work samples in the classroom had been “polished” in anticipation of open school night, the Parents did not follow-up to ascertain the actual abilities of the student. Socially, Ms. 7 testified that during the previous year, 1 had “fit in well” with the children and had “made a lot of friends with the girls.”24 Tr. at 34. In fact, the record indicates that a profile was generated “off of IEP direct” but was no longer available at the time of these 26s. Although very general, it did provide the Parents with IQ scores, classifications and ages. Tr. at 338-339; 341. Nevertheless, the Parent did not pursue his concern about the inappropriate class profile in Ms. 7’ class. Exh. 25 at 2. He did not request unedited work samples nor did he request further profile information or a second observation. As a result, I am not entirely convinced that this was a concern of a Parent seriously

24 It appears that the 2015-2016 classroom included many students from 1’s 2014-2015 class. contemplating placement in the District’s proposed classroom. Having said this, it is the District’s burden to establish the appropriateness of its classroom profile,

C. Pupil: Personnel ratio

One of the Parents’ primary objections concerns the lack of individualization and class size. Nevertheless, the pupil-personnel ratio recommended by the District was less than that recommended by the Parents’ private neuropsychological assessment. In fact, the 12:1:1 paradigm would service the child in a 6:1 ratio, significantly less than the 8:1 ratio endorsed by 11. However, even that ratio could conceivably be less as some children are pulled out for related services or are absent. Alarmed by the frequent variances obtained during the 2014-2015 school year, a situation in which 1’s class size grew to seventeen, it is understandable that the Parents would be concerned about the number of children enrolled in their daughter’s class. However, the Parents’ suggestion that class enrollment would balloon as it had the previous year is retrospective in nature and cannot be considered (R.E. v. New York City Dep’t of Educ., 694 F.3rd 167, 59 IDELR 241 [2nd Cir.]). Speculation that the school district will not adequately adhere to the IEP is simply not an appropriate basis for unilateral placement. While the Parents’ preference for a smaller class size is understandable, the District is not obligated to furnish a paradigm that is not even recommended by their own independent neuro-psychological evaluation.

Both District and 4 personnel opined that 1 demonstrated relatively strong social skills and that these skills should be utilized to foster learning. Indeed, witnesses testified uniformly that although 1 did demonstrate some minor social issues, her social skills were a relative strength for the child. Tr. at 43-44, 150, 275, 290, 389, 548, 569, 970, 993. In fact, even 4 personnel testified that “as kids get older, we try hard to enlarge the size of the groups for social reasons, but also it enriches the learning more.” Tr. at 816, 1170-1171.

1’s adaptive functioning skills, “such as her ability to complete daily tasks and engage in age appropriate socialization were largely within normal limits” (emphasis ours) and the 11 report references the child’s ability to maintain friendships, some of which even included sleepovers. Exh. 15, passim. Although sub-scores on the BASC indicate clinically at-risk scores in the areas of functional communication and leadership, Dr.13 credibly testified that these skills are language-based and reflected 1’s impaired abilities in expressive and receptive language, rather than a lack of social skills.^[25] Tr. at 249.

Given this scenario, District personnel uniformly opined that its 8:1 class would not provide the social, communication and academic stimulation 1 required as these students were far more impaired than 1 Specifically,

1’s social strengths in a larger group would compensate for her academic deficits and offer her a chance to shine. Indeed, the 11 report stated, “per teacher report, E.B performs best when in a small group and when she has the confidence to share her ideas or ask questions.”^[26] Exhs. 15, 9 at 2.

In furtherance thereof, Dr.16 believed a 12:1:1 class would encourage collaborative learning among children with different strengths, enabling 1 to model behavior as well as to serve as a model herself. Within a group setting, the students could brainstorm together and work towards common academic goals as a team. In this relatively heterogeneous setting, 1 would not always be identified as the struggling student. With a greater sense of selfesteem, Dr.16 believed 1 would be more likely to engage in risk-taking behaviors such as asking questions or attempting more challenging work.

Ultimately, with respect to class size and small group instruction, Dr.16 testified that suitability of methodology was a greater predictor of successful instruction than pupil: personnel ratio. Tr. at 665. Beyond the social opportunities offered by the 12:1:1 paradigm, the District’s program additionally offered instruction in social studies and science, content areas in which 1’s strengths in verbal comprehension would be well-served. Although these content area discussions would additionally tap into 1’s stronger social skills, they would also enable her to reinforce and generalize sight words obtained during reading instruction.

Notwithstanding all the above, clearly group instruction is not a panacea for all learning deficits and the 11 report specifically indicates that 1 requires individualized reading instruction on a daily basis. Given 1’s history of “wavering” efforts, inattention to more difficult tasks and the need for frequent prompts and redirection as cited throughout the record, I do not believe the District’s mandate was sufficient to meet 1’s needs. Exh. 15, passim. A twenty-minute period shared by another student in a challenging subject was simply inadequate for 1 to make meaningful progress, in view of her significant needs. The record indicates that 1 demonstrates borderline processing speeds, a borderline ability to follow directions as per her CELF, extremely low visual memory and borderline memory. Exhs. 10, 15, passim. Her difficulties remaining on task are cited pervasively through the record.

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]). In this regard, I do not believe the District was required to offer individual instruction. Rather, I believe 2:1 group instruction would have furnished 1 with adequate individualized attention and the opportunity to ask questions in a non-threatening environment. Similarly, it would enable her teachers to more clearly focus upon those concepts with which 1 struggled. However, while individual instruction was not necessary, I do not believe the once daily twenty-minute math and twenty-minute reading tutorials were adequate. Indeed, the CSE itself arrived at this conclusion the following school year.

Despite the presence of 90-minute literacy and 60-minute math blocks, I believe 1 required a more intimate instructional approach to these subjects. Indeed, even small group instruction, such as that offered through the literacy blocks, involves the heightened presence of visual stimuli simply occasioned by the addition of other students. More significantly, I believe the literacy and math blocks present a greater cognitive challenge to prioritize and filter material, some of which may be conflicting. The distractions inherent within providing instruction for mixed abilities must additionally be considered along with transition issues, such as packing up materials and/or regaining focus. For a child such as 1, the use of literacy and math blocks alone was inadequate as were the shared twenty-minute tutorials. Thus, while the social component of learning in a 12:1:1 environment was appropriate, I do not believe the level of individualized reading and math instruction was adequate to meet 1’s needs.

Clearly, small group instruction is inherent within the 12:1:1 paradigm. However, 1 required a dedicated and consistent period devoted strictly to her reading and math needs, independent from scheduling fluctuations and time. In this regard, the Parents have been unswerving in expressing their concern about the 2015-2016 IEPs.

Consistent with Endrew F., supra, the District’s program must not merely create a chance or possibility of progress, it must be reasonably calculated to enable a child to make progress appropriate in light of that child’s circumstances, that is, it must create a likelihood of progress (Endrew F. at 137 S.Ct. 1001). 1 is a child with significant cognitive deficits and should not be subject to the “soft bigotry of low expectations.” Brief of Former Officials of the U.S. Department of Education as Amici Curiae at 6, cited in Endrew F. 137 S.Ct. at 988.

In the matter at bar, the testimony indicates that 11’s recommendations and learning accommodations were incorporated programmatically into the 12:1:1 program. However, I do not believe the daily small group reading and math periods were adequate to meet 1’s needs, given her levels of distractibility, poor frustration tolerance and cognitive deficits. In this respect, the inadequacy of targeted reading instruction resulted in “the loss of educational opportunity,” and thus, the District failed, in part, “[t]o meet its substantive obligation under the IDEA. Per Endrew F. vs. Douglas Cty. Sch. Dist. Re-1, 137 S.Ct. 988 (2017), “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” In this instant matter, 1 required intense reading and math instruction. Although I do not object to the 2:1 paradigm, I find the shared twenty-minute period inadequate, an opinion the CSE shared the following year and corrected. Point III: Was 4 an appropriate educational placement for 1 during the 2015-2016 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.

During the 2015-2016 school year, 4 was a small private school of 38 children offering academic services in an intimate and nurturing environment. The school is hosted on the campus of 25, a mainstream yeshiva with which 4 occasionally interfaces programmatically. While the school is, in fact, a REDACT , 4’s secular program forms the

ED greater part of the curriculum.

I find, at the outset, that. 4’s services are guided by a CSP which extensively addresses the student’s literacy, math and language needs. In addition, it frames the recommendations for related services in terms of quantity, quantity and location. 4’s instructional materials include statistically and empirically validated methodology, including the Wilson and PAF reading programs as well as Stern and Jump Math. Although 1 receives services in a largely 1:1 context, some attention is directed to encouraging peer relationships within the classroom as well as to the development of mainstream friendships. Instruction is provided in a multi-sensory format by credentialed teachers with knowledge of special education technique. During the 2015-2016 school year,^[1] was placed with eight other cognitively impaired children whose skills fell within a two-year grade level. Tr. at 810,

945. All children exhibited global delays. While these are strengths of the program, one must recognize the program’s serious weaknesses.

Although Parents are not held rigidly to the least restrictive standard when placing their children unilaterally, I find that 1’s isolation within the classroom was, in part, pedagogically inappropriate. The testimony indicates that During the 2015-2016 school year, Ms. 20 testified that 1 did not “end up with any continuous inclusion experience.” Tr. at 927. Similarly, 4 did not offer the child social studies or science classes. As these classes rely on greater class discussion and participation, relative strengths for 1, the child would have had an opportunity to participate with her class on more equal footing. This is particularly important as 1’s school anxieties could have been mediated by opportunities to excel among her peers. Significantly, 1’s relative strengths include verbal reasoning, oral comprehension and her fund of general knowledge. Exh. 15 at 4. Her social skills, likewise, are a relative strength. These assets were clearly underutilized.

Most troubling, I find that the child’s reading goals were wholly based upon a phonetic approach. Exh. J, passim. Given 1’s cognitive and auditory deficits, the acquisition of functional sight words should have been a prominent goal on 1’s CSP. In fact, the 11 report indicates that 1 had already acquired 50-60 sight words prior to attending 4, an approach with which 1 had been successful. Nevertheless, the CSP is silent regarding the maintenance and reinforcement of these sight words. Similarly, a review of the 11 testing would have highlighted 1’s need for a non-phonetic approach. The report states, “. . . Even with significant teaching, 1 was unable to identify rhyming words or math ending sounds.” Exh. 15 at 5. Similarly, the 11 report noted that the child was unable to complete a task in which 1 was required to generate words based on their initial letter. Exh. 15 at 6. Even Ms.22 reported that 1 had difficulty rhyming words and using phonological cues. Tr. at 1022. In fact, the Parent himself observed that 1’s speech articulation often reflected sound distortions, separate and apart from syntactic errors. Nevertheless, 4 continued to utilize an approach which was marginally successful.

By December 3, 2016, three months into the 2015-2016 school year, 1 was officially diagnosed with a mild to moderately severe high frequency 26 loss.” Exh. 40. This referral had actually been recommended earlier by 4 personnel who had noted that 1 sometimes “did not follow directions or seem to understand what had been said.” Tr. at 1090. Unfortunately, the child’s 26 impairment had no impact upon 1’s CSP in terms of instructional modifications. Nowhere in this document is there any reference to the child’s mild to moderately severe 26 loss, her need for an 27 unit, her need for a modified approach to reading which would rely less on phonetic instruction or even the possible need for a teacher of the 26, a common service for 26-impaired children. Significantly, 4 did not refer the Parents to their district of service and the Parents walked away from this situation believing they would need to bear the expense of the 27 unit. Under this misguided impression, it is no wonder the Parents did not insist upon the 27 unit.

In fact, it appears that 4 personnel unilaterally determined that the 27 unit was unnecessary since Ms.22 testified that 1 received much of her services in a 1:1 context. It is unclear whether any professional audiological input was part of this decision. However, testifying in a different context, Ms.22 noted that even when receiving individualized services, services were rendered at a work station within the classroom itself and “the minute class was over, she was with her friends again, and there is also a big table where we all gather for all of the group and there’s three teacher stations spread out throughout the room and there is like play areas.”

Contrary to 4’s conclusion, this is quite likely an environment in which ambient noise is an issue. Indeed Ms. 23 testified, “I can’t really say whether how much she would have benefitted from one [an 27 unit], but she still clearly was making significant progress even without one. Of course, that’s the kind of thing I’m sure she would benefit even more from, but I can’t really speak to her progress without it.” Tr. at 1181-1182, 1194-1195. Again, this is the “soft bigotry” of lower expectations. Endrew F., supra.

In fact, during the 2016-2017 school year, 1’s mainstream lunch experience was terminated, as, “[1] was overwhelmed by the lunchroom and was finding it difficult to hear the other students and really carry on those conversations.” 1’s 26 loss was real and the failure of 4 to address this appropriately was egregiously negligent as it would have cost them NOTHING to offer 1 a trial of the 27 unit, at the very least. requested a consultation themselves. It is similarly unclear upon what basis they determined 1 did not require an 27 unit as Ms.22 could not remember if there had been a meeting about this. Tr. at 1091. Finally, it is absurd that 4 would not avail itself of the 27 equipment when it was 4 personnel who first identified 1’s 26 problem. In sum, all of these circumstances render the second portion of the 2015-2016 school year inappropriate.

As a result, I will only address the first portion of the school year in terms of whether the program was appropriate. Although there are many issues related to 4’s 2015-2016 secular program (i.e. the persistent self-isolating 1:1 instruction in a classroom in which 1 “did not have many learning partners,” the lack of formal measures to determine progress, the absence of science and social studies classes, the absence of meaningful and consistent mainstreaming opportunities), none of these, either alone or together, would render 4’s program wholly inappropriate. As a result, I find that 4 offered 1, in part, an appropriate education during the first semester of the 2015-2016 school year.

Point IV: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2015-2016 school year?

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 daughter’s CSE convenes and communicated at length about their concerns. Tr. at 208-210. They did not rely upon the District to meet all of their expectations and independently sought outside consultations and tutoring when able. Although they did share the 11 report with the CSE, they did not share the audiological report in a timely manner, depriving the District of critical information. In fact, they offered it to the school at the end of the 2015-2016 school year.

Notably, the Parents submitted their application to 4 on May 13, 2015, two days after their CSE meeting with the District and by letter dated August 19, 2015, the Parents rejected the District’s program long before they had ever seen it. Although discussions between the District and Parents continued well into the 2015-2016 school year, I am not convinced that they would have removed 1 from 4 in the middle of the school year. This is underscored by 21’s testimony regarding the resolution period a few years later and the Parents’ exclusive interest in tuition reimbursement. Tr. at 1489. As such, the Parents’ actions clearly warrant reduction of any tuition award.

Point V: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the June 2, 2016 IEP reasonably calculated to confer an educational benefit upon 1 during the 2016-2017 school year?

For many of the reasons articulated earlier with reference to the 2015-2016 school year, I find that 1 received FAPE during the 2016-2017 school year. Exh. 29. The District relied upon appropriate evaluations and there is no question that both the Parents and 4 participated fully at the CSE convene. Similarly, I believe the 12:1:1 paradigm remained an appropriate setting for 1 Most significantly, the CSE significantly increased the amount of time in 1’s 2:1 reading group to thirty minutes, twice a day. In addition, the child was provided with an additional thirty minute 2:1 math tutorial, once a day.

With regard to the class profile, I note that the Parents were furnished with a detailed profile in preparation for the June 2, 2016 CSE. Exhs. 29, 30. While there is some question as to the comparability of WPPSI-IV and F-II cognitive scores, ultimately the document is one in which academic needs are delineated. Tr. at 209. Reviewing this document, it is clear that most of the children’s reading skills fall within the end of kindergarten to first grade. Moreover, if Dr. 1’s statement to 11 is correct, 1’s acquisition of 50-60 sight words, places the child way above many in her class. Cf. Exhs. 15 at 2, 30.

Dr. 2’s remarks are well-taken with respect to the lack of parity when comparing F-II scores from which working memory and processing speed have been filtered out with WPPSI-IV or WISC-IV scores. This would seem, however, to suggest that students whose F-II scores were reported, would actually function at a lower level when faced with the realities of a classroom or tested on instruments that do not eliminate working memory and processing speed. Moreover, the inconsistencies with regard to English language learners and the use of the Special Non-Verbal Composite are also noted. However, the broader picture demonstrates that the primary consideration for placement within the 12:1:1 class is skill-based. In this respect, psychologist13 testified that 1 “would fall right into the group.” Tr. at 209-210.

It should additionally be noted that the B. family did not file a ten-day notice for the 2016-2017 school year. As a result, the District had no opportunity to address the Parents’ concerns and tailor an educational plan which was mutually acceptable. In view of all of these circumstances, I find that the District’s programming was appropriate and consequently, there is no reason to address prongs two or three of Burlington, supra. Point VI: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the May 24, 2017 IEP reasonably calculated to confer an educational benefit upon 1 during the 2017-2018 school year?

Evaluations

The May 24, 2017 CSE proceeded with several current evaluations and reports from 4. These included a teacher progress report, a social skills report, 28 therapy and 28therapy summaries. Speech and Language testing from July 2015 (the CELF-V) was additionally available along with the Kaufman Test of Educational Achievement, NEPSY-II, Peabody Picture Vocabulary, Wechsler Pre-School and Primary Scale of Intelligence and Wide Range Assessment of Memory. All of the latter test results are dated from July 2015 and were current. Tr. at 544-545. In addition, the child’s CSP from the 2016-2017 school year was offered by 4. Both the child’s teacher and 4 administrator participated in the proceedings along with District personnel. Ms. 17, the District’s case manager, testified that the proceedings included sufficient evaluations necessary to develop an IEP for 1 Both standardized testing and observation input were included in the decision-making process. The assessments reflected both the child’s strengths and weaknesses.

Although due for triennial evaluations, this did not occur. However, the Parents’ actions were largely responsible for this failure. By letter dated March 29, 2017, the District forwarded a Written Notice with Request for ReEvaluation. Exh. 32. The Parents did not respond or return an authorization permitting assessment. On April 7, 2017 Ms. 17 testified that she again sent a request to the Parents for authorization to conduct testing. On April 20, 2017 a third request was sent with a return receipt requested. Exh. 33. Ms. 17 testified that she then contacted the Parent directly by phone. On May 1, 2017 the Parent responded, providing a written authorization dated April 4, 2017 with a caveat. Exh. 34. In furtherance thereof Dr. B. indicated that he would be consulting a private evaluator at 10/11 again but did not want the District to proceed until he knew which tests 11 would be performing. In this manner, he wished to avoid tainting the test results through practice effects. Ms. 17 testified, “. . . If a parent, if two parents are psychologists, and parents have written me an email and have asked me and have told me they are taking their daughter to 10 and have asked me to please not proceed with testing, I would not. . . It wouldn’t be the right thing for me to do, to override parents who are very well versed as psychologist and whom I have respect for. This is their child.” Tr. at 632.

Ultimately, Ms. 17 testified that she never received that list, nor did she receive a response to a phone message left with the Bs. Although additional District evaluations could have been performed, Ms. 17 testified that the Parents’ concerns had a chilling effect upon their pursuit as she did not want to compromise the integrity of the Parents’ private evaluations. Beyond this, the Parents’ failure to return their authorization in a timely manner created logistical difficulties as the CSE had already been scheduled.

Clearly, an observation could have been conducted in addition to current 28 therapy and 28therapy assessments. However, detailed information from the 2014 Test of Motor Development and 2014 L-Visual Motor Integration assessments was available as was the input of the Parent and 4 personnel, individuals who knew the child well. Ultimately, these were the most knowledgeable sources of information. I find that the evaluations before the CSE on May 24, 2017 were sufficient and, in no way, impaired the CSE’s ability to develop an appropriate IEP. It should be noted that an audiological report referencing the child’s 26 impairment had been furnished to the Parents in December 2016 but not offered to the District until June 2017. Exh. 40; Tr. at 1441. At this time, the District immediately took steps to refer the report to its audiologist and an 27 unit was recommended. Exh. 41. The Parents thereafter consented to amend the 2016-2017 IEP to include the use of an 27 unit along with auxiliary services. Exh. 44.

Individualized instruction

In the course of the May 24, 2017 deliberations, 4’s representatives indicated that 1 had developed a positive attitude to school and was more confident in her academic skills. Similarly, 1 appeared more secure in her ability to ask questions and participate in group discussions. The child no longer engaged in persistent avoidance behaviors when challenged and was willing to take academic risks. This is a significant improvement over Ms. 20’s earlier observation that even 1’s inclusion opportunities were limited by the child’s 27 and the anticipation of failure. Tr. at 899. As a result, Dr.16 believed 1 would benefit from utilizing these emergent social skills in project-based learning opportunities. In this manner, 1 could avail herself of social strengths to reinforce academic skills. Tr. at 658; Exh. 39 at 3. Dr.16 testified, “So I was thinking that a student with 1’s emerging social skills, who is now able to take a risk, who is able to begin to ask . . . follow-up questions, I felt that she needed more of an opportunity to engage with her peers in cooperative learning, collaborative learning and to have more of a learning community going on, rather than all of the individual work that she was getting.” Tr. at 665-666. Thus, as an active participant within the classroom, 1’s self-esteem would be reinforced as compared to the stigmatizing isolation of ongoing individualized instruction.

Finally, based upon 4’s representations that 1 was making significant progress in her reading skills and her ability to tolerate frustration, the CSE developed an IEP which no longer included 2:1 tutorials in math and reading although small group instruction remained inherent within the 12:1:1 paradigm. Dr.16 testified that the Parent did not object to the removal of these tutorials although their continuation could have been discussed. Tr. at 663. The District continued to recommend a whole to part reading technique and the acquisition of high frequency sight words. Tr. at 722. This was particularly important given 1’s 26 impairment.

Beyond this, it is clear that the District addressed the child’s 26 impairment in a meaningful and appropriate manner, relying upon experts in the field. In view of the above, I find that the District’s IEP was procedurally and substantively intact and that 1 was offered FAPE during the 2017-2018 school year.

However, even if this were not so, I note that the Parents did not file a ten-day notice. As a result, the District was deprived of its right to work collaboratively with the Parents to develop a remedy which would be agreeable to all. As they did not even observe the proposed program, one can only speculate as to the Parents’ objections and their interest in a District placement. Finally, 4’s failure to address 1’s 26 impairment continues to render their program inappropriate.

Conclusion

I find that the Parents’ request for relief must be granted in part as the District’s 2015-2016 educational planning did not adequately address 1’s need for individualized and small group instruction in math and reading. As such, it fell short of its mandate to provide 1 with FAPE. That said, any award must be drastically reduced based upon the partial inappropriateness of 4 and the various equitable factors which militate against the Parents’ right to recovery.

I find that the District’s 2016-2017 and 2017-2018 IEPs provided FAPE to 1 In view of the above, there is no need to address prongs two or three of Burlington, supra.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the District shall make a payment of $10,000.00 to the 4 School for tuition expenses incurred by 1 during the 2015-2016 school year. This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint dated November 9, 2017.

Dated: February 22, 2019

_________________________________________

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

Persons in attendance on May 22, 2018

For the Parent:

REDACTED

1, Parent

2, Parent

For the District:

REDACTED

21, Assistant Superintendent for Special Student Services

7, Teacher, District

13, School Psychologist, District

Persons in attendance on May 23, 2018

For the Parent:

REDACTED

1, Parent

2, Parent

For the District:

REDACTED

21, Assistant Superintendent for Special Student Services

15, CSE Chairperson, District

Persons in attendance on June 14, 2018

For the Parent:

REDACTED

2, Parent

For the District:

REDACTED

21, Assistant Superintendent for Special Student Services

15, CSE Chairperson, District

REDA 17, District Psychologist

CTED 56

16, District Psychologist

Persons in attendance on June 27, 2018

For the Parent:

REDACTED

2, Parent

REDACTED , Director, 4 School

For the District:

REDACTED

21, Assistant Superintendent for Special Student Services

16, District Psychologist

Persons in attendance on June 27, 2018

For the Parent:

REDACTED

2, Parent

For the District:

REDACTED

21, Assistant Superintendent for Special Student Services

16, Instructional Supervisor, District

15, CSE Chairperson, District

Persons in attendance on August 6, 2018

For the Parent:

REDACTED

2, Parent

REDA , Special Education Teacher, Director, 4 School

CTED

23, Classroom Teacher, General Studies, 4 School

For the District:

REDACTED

21, Assistant Superintendent for Special Student Services

Persons in attendance on October 18, 2018

For the Parent:

REDACTED

2, Parent

For the District:

REDACTED

16, Instructional Supervisor, District

Persons in attendance on October 25, 2018

For the Parent:

REDACTED

2, Parent

For the District:

REDACTED

16, Instructional Supervisor, District

21, Assistant Superintendent for Special Student Services

NOTICE OF RIGHT TO APPEAL

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

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the 26 record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the 26 record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the I Regulations of the Commissioner http://www.sro.nysed.gov/part279home.html.

of Education available at

I

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Footnotes

[1] Such as Spector Phonics

[2] The witness indicated that the District no longer utilizes “non-differentiated” report cards which measure success against the general education population and its curriculum.

[3] 2 (20 minute) sessions, provided in a small group of 2:1, once for reading and once for math, per day

[4] Notes were prepared at the request of the District’s Superintendent, following the Parents’ ten-day notice. The witness testified that she was aware of the Parents’ dissatisfaction but was not asked by Mr. 12 to modify or alter her opinions. Tr. at 127.

[5] In addition to related services of 28 therapy, 28therapy and speech/language therapy

[1] would not be attending classes within District, a Parental decision which surprised her as there had been no previous indication of the B.’s dissatisfaction. Tr. at 153-154. Thereafter, on September 8, 2015, Ms.13 again participated in a CSE convene for 1 as the District’s psychologist. Tr. at 157; Exh. 14. At the request of the Parents, the Committee reviewed the private neuro-psychological report which they had obtained. Exh. 15. As a result of the 11 report, the child’s classification was changed to multiply impaired. Beyond this and in response to the Parents concern that frequent related service pull-outs would compromise 1’s academic instruction within the classroom, the IEP mandated that services would be provided as push-ins wherever possible. Tr. at 159. Moreover, a small group 5session was added once a week. Most

[6] The witness testified that the child’s verbal comprehension score for similarities had more than doubled since 1 had been assessed in 2013, a skill which is highly responsive to 5intervention. Tr. at 167-168; Cf. Exhs. 10 at 4, Exh. 15 at 15.

[7] By June 2016, the amount of daily small group reading, and math service was increased to 30 minutes per session. Tr. at 426-428; Exh. 29.

[8] Among the programs offered is “Lunch Bunch,” a structured program, elective in nature, led by a District psychologist during lunch period. Tr. at 384-385.

[9] Both Dr. 2 and Dr. 1 are school psychologists.

[11] i.e. music, art, 28 education, library

[1] struggled to grasp a difficult concept, the child would shut down or refuse to continue working. Tr. at 876-877, 886. As a result, social-emotional goals were developed with the aim of increasing 1’s tolerance for working with others. These goals were developed individually for the child as well as programmatically through the Responsive Classroom protocol and participation in social skills groups. Tr. at 887. Ms. 20 testified that 1 had

[15] When not individualized, academic instruction would be offered in a small group of no more than two children

[1] one of the lower functioning students academically and, as a result, did not “have many learning partners” in the classroom. Consequently, her reading and math instruction was given on a 1:1 basis. Nevertheless, this frequent 1:1 instruction was beneficial for 1 as personnel were able to easily address her academic anxieties within this context. Tr. at 1078-1079. Moreover, modest goals could be met with high levels of praise when achieved. 1’s progress was additionally facilitated by chunking materials into very small pieces and eliminating multi-step directions. By the end of the 2015-2016 school year, Ms.22 testified that 1 was more confident about attempting new challenges, both academic and social. In math, she opined that 1 developed a much stronger understanding of numbers. In fact, while the CSP indicated that some math skills had been mastered, progress in the area of reading was far more problematic. In this area, the witness acknowledged, “. . . blending 3 discrete sounds in a consonant-vowel-consonant word remains an area of challenge.” Exh. J at 6. Only two reading goals were mastered by the end of the school year. On cross-examination, Ms.22 admitted that she did not utilize standardized testing during the year to measure her students’ progress and was uncertain if any formal testing had been performed by the school at the beginning or end of the year. Tr. at 1036-1037. She was, moreover, unsure as to whether she had reviewed any standardized test measures prior to developing the CSP. Tr. at 1065. In furtherance thereof, Ms.22 noted that an educational

[17] The only clear source of information regarding the child’s actual progress during the prior school year was obtained from the child’s tutor whose credentials are unclear. While Parental input was obtained, it appears that little to no contact was made with the School District. Tr. at 1088.

[1] had participated in a limited mainstream lunch period with a facilitating teacher during the 2016-2017 school year, it eventually became clear that this setting was inappropriate for the child who had difficulty 26 and following the conversation. During the 2017-2018 school year, 1 participated in a similar mainstream opportunity offered in a quieter locale. In this manner, 1 could feel that she had developed a lunch buddy who would support her during events hosted by 25. On cross-examination, Ms. REDACTED acknowledged that a CSP had not been developed for RED until November, ACT during both the 2016-2017 and 2017-2018 school years. Nevertheless, informal goals were ED developed during the first few weeks of school based upon visual assessments and running records. Tr. at 1194. Although the 11 evaluation had been available for the November 2016 CSP, Ms. REDACTED had not seen it nor had she seen the District’s IEP for the upcoming year. Tr. at 1173-1176. In fact, she testified that reading the child’s neuro-

[20] The letter was not received by the District until October 24, 2015.

[21] The 2016-2017 IEP recommendation calls for reading: 2 x 30 (2:1) and math 1 x 30 (2:1) per day

[22] The Parent testified, in the way of background, that his oldest child is additionally disabled and was classified by the District. This child, however, did not attend a District placement as the Parents believed he would be successful in a small mainstream private school. Their son attended a non-public school placement for several years at Parent expense. Tr. at 1258. Likewise, the Parents have retained their own tutor for 1 and have not sought reimbursement for her services.

[25] 1 was previously classified as 5impaired.

[26] Although the report cites all the standardized testing upon which its findings are based, it does not specifically denominate which reports (or IEPs) it utilized to draw this conclusion.

[1] did not have many “learning partners in her class” and that even during morning circle time she required the presence of a teaching assistant beside her. Tr. at 1119-1120, 1025. Beyond this, many of the child’s related services were provided as an individualized service. This level of intense supervision and instruction was both unnecessarily isolating and stigmatizing. While 1’s 1:1 instruction is not per se, inappropriate, the extent of 1’s isolation must be appreciated in terms of the total amount of class time spent alone in math/reading tutorials and related services. As the child is acutely aware of her academic shortcomings, I do not believe this frequent segregation was the best way to approach the child’s instruction. Two years later, when 4 personnel uniformly testified about 1’s significant progress, the District continued to observe the child in an isolated setting, desk pushed to the side, playing “store” alone with her teacher. Tr. at 562-564; Exh. 50. Upon review of the child’s schedule, approximately one third of her day was spent in a 1:1 setting. Tr. at 1095-1096. While 4 personnel believed 1’s academic and emotional needs required this level of intensity, it may have created more problems than it solved. Tr. at 1096-1097.