Impartial Hearing Decision

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THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

In the Matter of the Application of XX, a Child with a Disability, by his Parents,

XX. and XX for a Due Process DECISION AND ORDER

Impartial Hearing,

Petitioners,

-against-

XXXXXXXXXXXXXX

UNION FREE SCHOOL DISTRICT,

Respondent.

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

& ASSOCIATES, LLP

Attorneys for STUDENT

Attorneys for ROCKVILLE CENTRE

UNION FREE SCHOOOL DISTRICT

APPEARANCES May 1, 2018

For — Parents

Mother of — Student

Father of — Student

For Esq., Attorney — District

XXXXXXXXXXX, Asst. Supt. Pupil Personnel Serv. & Special Education XXXXXXXXXXXX High School Social Worker XXXXXX, Psychologist, CSE Chairperson

May 10, 2018

For Parent

Esq., Attorney Mother of Student Father of Student

For District

, Esq., Attorney XXXXXXXXXXX, Asst. Supt. Pupil Personnel Serv. & Special Education XXXXXXXXXX High School Special Education Teacher XXXXXXXXXXX High School General Education English Teacher

June 7, 2018

For Parent

Esq., Attorney Mother of Student Father of Student XXXXXXXXXXXXXXX Head of School XXXXXXXXXXDean of Students

For District

, Esq., Attorney XXXXXXX Asst. Supt. Pupil Personnel Serv. & Special Education

JUNE 12, 2018

For Parent

, Esq., Attorney Mother of Student Father of Student XXXXXX Sister of Student XXXXXXXXXXX Pediatric Neuropsychologist

For District

Esq., Attorney XXXXXXX Asst. Supt. Pupil Personnel Serv. & Special Education

On May 1, 2018, May 10, 2018, June 7, 2018, and June 12, 2018, I conducted an Impartial Hearing at the XXXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXX New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “parent”) by correspondence dated January 2, 2018. (Ex. 1) I was appointed Impartial Hearing Officer on January 23, 2018. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on February 13, 2018, the hearing was scheduled for May 1, 2018, May 10, 2018, May 17, 2018, June 7, 2018 and June 12, 2012, the first mutually available dates for the parties and the hearing officer. The May 17, 2018 hearing was adjourned at the request of the parent and another date was scheduled. That hearing was thereafter canceled when the evidentiary portion of the hearing concluded on June 12, 2018.

The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and the submission and consideration of closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions with regard to the extensions was given to the parties. . (T. 3, 8-9, 269, 392, 571, 721, 724, Ex. I )

The current compliance date is October 7, 2018. The record closed on September 18, 2018.

Positions of the Parties

The parent asserts that the May 23, 2017 IEP was procedurally defective and substantively inappropriate and that a FAPE was denied for the 2017-2018 school year (“SY”) The parent unilaterally placed the student in XXXXXXXXXXXXXXXXXXXXX, claims that it was appropriate and seeks reimbursement for that placement. The parent asserts that equitable considerations do not support denial or limitation of reimbursement. (Exs. A, IV)

The district asserts that the recommended program was appropriate and that it provided a FAPE. It claims that XXXXXXXXXXXX was not appropriate for this student. Further it claims that equitable considerations in this matter favor the district.

(Ex. III)

Background ^[1]

The student, then about years old, was unilaterally enrolled by the parent in XXXXXXXXXX for the 2017-2018 SY and was in the 9th grade. (T. 20, Ex. A) His disability classification is XXXXXXXXXXX.. (Ex. 7)

The student attended Kindergarten and 1st grade (2008-2009 and 2019-2010 SYs) in an XXXXX public school. (T. 19) He attended XXXXXXX, a parochial school located in XXXXXXXXX, for the 2nd through 5th grades. (T. 22) He attended XXXXXX Academy (“XXXXXXXXX”) a parochial school located in XXXXXXX New York, for the 6th through 8th grades. (T. 22) XXXXXX does not provide instruction past the 8th grade and its students customarily move on to high schools. (T. 32) XXXXXXX is a small school and there are about 15 students in each class. (T. 89) The student did not receive a diploma or graduation credential from XXXXXXXXX (T. 32, Ex. 7)

The student was classified by XXXX as a student with a disability by 2nd grade (2010-2011 SY). (T. 19)^[2] XXXXX CSEs issued IESPs providing resource room and/or related services to the student at XXXXXX. (T. 22) The XXXXXX Union Free School

District (“XXXXXXXXX ”) issued IESPs and provided services for the student at XXXXXX for which XXXX paid. (T. 23) XXXX had no involvement with the determination of the student’s program at XXXXXXX. (T.23)

At age 7, shortly after starting at XXXXX, the student was diagnosed with

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXX (Ex. B)

When the student was in the 5th grade at XXXXXX the parent obtained an independent Psychoeducational Evaluation which was conducted in November and December 2013 (“the 2014 Psychological Evaluation”) when the student was about 10 ¾ years old. (Ex. B) The student was at that time receiving resource room, OT and SLT pursuant to XXXX CSE IESP. In addition, the parent was providing private tutoring twice a week from a teacher with a special education background who reported comprehension and decoding problems, difficulty in recalling math facts and the need for refocusing. (Ex. B1) It was noted by the evaluators that St. Agnes maintained a rigorous curriculum and that the student had difficulty keeping up with demands although he worked hard. (Ex. B-1) However, XXXXXXXXXXXXX XXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXX (Ex. B) 3

The 2014 Psychological Evaluation reported XXXXXXXXXXXXXXXXXX(Ex.

B3)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX The

student’s XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. B4-5)

It was noted that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXX (Ex. B) It was reported that although the student was generally focused during “this very structured XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (Ex. B) The student also displayed problems with tasks requiring XXXXXXXXXXXXXXXXXXX. (Ex. B7) Academic testing showed XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. B) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

“XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

3

XXXXXXXXXXXX (Ex. D1)

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXX. It was reported that the student was acutely aware of his learning difficulties and his self-esteem was significantly impacted. (Ex. B)

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX were diagnosed. The evaluators stated that the student “would benefit from a learning setting in which there are remedial supports directly tailored to students with language disorders and learning needs.” (Ex. B)

An independent Speech and Language evaluation was thereafter conducted, on April 8, 2014, which diagnosed the student with XXXXXXXXX XXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. D)

The student completed the 5th grade at XXXXXXX and the parent enrolled the student at XXXXXXXXXXXX for the 6th grade. (Ex. F)

The parent reported that in the 6th grade the student experienced some XXXXXXXXXX regarding academic tasks, performance and achievement but the XXXXXXX were mild in intensity and frequency. (Ex. F)

Although the student started “strong” in the 7th grade, XXXXXXXXXXX reemerged and he began to exhibit XXXXXXXXXXXXXXXXXXXXXXX which affected academic progress, performance and achievement. (Ex. F)

The student again had a “strong” start for 8th grade but began XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX specifically of social situations with peers and of school, expressing feeling sick and worried about the amount of school work and interacting socially with his peers. (Ex. F) He attended only 8 days in October and the student ceased attending around October 24, 2016 but for a few isolated classes and some of the XXXXXXXXXXXXX provided services. (Exs. F, 4)

A Psychosocial History dated November 2, 2016, was conducted by XXXXXXXXXXXX in preparation for a review (“the Psychosocial”). (Ex. F) At that time the student was again taking XXXXXXXXXXXXXXXXXXXXXXX symptoms and a medication for XXXXXXXX. (Ex. F1) The Psychosocial comprehensively reported the student’s educational, medical and psychological history from preschool. (Ex. F)

A Psychological Report was conducted for the XXXXXXXXXX re-evaluation on November 4, 2016. (Ex. 11) The evaluator noted cooperation, motivation, concern about performance and a variable level of self-confidence. The student’sXXXXXXXXXXX ).

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The

student reported daily somatic symptoms during the school week that contributed to his XXXXXXXXXXXXXXXX. Evaluation results also indicated that the student was experiencing XXXXXXXXXXXXXXXXXXXXXX particularly related to school achievement and perceived his difficulties in school as getting worse. He was concerned about being rejected by others including family members due to poor achievement. Those issues were described as significant and contributing to

XXXXXXXXXXXXXXXXXX. (Ex. 11)

The XXXXXXX CSE convened on January 10, 2017 for a parent requested review and issued an IESP for the balance of the 2016-2017 SY. (Ex. 4) The IESP noted

diagnoses of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.. The CSE continued to recommend: Resource Room (1x45 daily (5:1); Speech/Language Therapy (“SLT”) 2x30 per week (small group); Occupational Therapy (“OT”) 2x30 per week (small group). The parent reported that the student XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.XXX

XXXXXXXXXX It was noted that home instruction support would be explored by the parent. (Ex. 4)

By application dated February 2017, the parent requested out of school instruction (“HI”) services from XXXXX (T. 23, Ex. 6) The application included information dated January 12, 2017 from the student’s XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX reporting diagnoses

of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX. (T. 23, Ex. 6-3) The letter reported that unsuccessful efforts directed to getting the student to return including truncated schedule, limiting time around peers and working with specific teachers had been made but had been unsuccessful. (Ex. 6-3) It was also reported that the student was “at times” XXXXX XXXXXXXXXXXXXXXXXXXXXX that attendance was “inconsistent.” (Ex. 6-2)

After an initial district plan to have all HI provided at XXXXXXXX could not be implemented due to staffing difficulties, it was determined to provide ELA, Science and Math out of school but have the student continue with Social Studies as well as the XXXXXXX provided services at XXXXXXXX. (T. 29-31) As a consequence of student resistance to instruction at XXXXXXXXX, the HI plan was again altered to provide Social Studies out of school as well. (T. 30) XXXXXXXXXX, after a March 29, 2017 CSE review, provided an additional 15 minutes of resource room at XXXXXXXXXX. (Exs. 4, 5) The student missed some HI sessions, due principally to illness and scheduling issues, as well as missing some of the resource room and related services sessions due to absences from school. (T. 31, 39, 91)

In April 2017 the district received an independent Neuropsychological and Educational Evaluation Report by Dr.XXXXXXXXXXX based upon testing conducted in February 2017 (“the Neuropsychological”). (T. 38, Ex. 9) Dr. XXXXXXX diagnosed:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXX. He also reported “elements of other XXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXX. It was reported that the student’s overall intellectual functioning fell within the XXXXXXXX although there were indications to suggest an underestimate. The student showed “XXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX (Ex. 9-6). XXXXXX made many specific recommendations concerning the student’s program including that he receive a “highly supportive, full-time, special education environment that includes a small school and small student-teacher ratio in the classroom.” (Ex. 9 at 7-8)

The XXXX CSE convened for an annual review on May 23, 2017. (T. 95, Ex. 7) Participants included: Dr. XXXXXXXXXXas Chairperson, Dr. XXXXXXXXXXX, Assistant Superintendent, Pupil Personnel Services and Special Education, an XXXX school psychologist, a XXXX school social worker, an XXXX guidance counselor, an XXXX general education teacher, an XXXX special education teacher, XXXXXXXXX Educational Coordinator, and both parents. (T. 33, 164, Ex. 7) The student’s resource room teacher (provided by XXXXX) participated by telephone as did Dr. XXXXXXX who was there for at least part of the meeting. (T. 159-161, 83-84, Ex. 7-2)

The student was classified as XXX. The CSE recommended a 10 month program with: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX(Ex.

7) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX Occupational therapy was not provided. Although “[a] transition plan was … proposed to help [the student] orient and have a smooth transition” there was no plan specified in the IEP. Post high-school transition needs were addressed including “Complete the necessary coursework required for graduation with a Regents high school diploma.) Goals were developed, Supplementary Aids and Services/Program Modifications were specified, testing accommodations were provided and the student was exempted from the foreign language requirement. (Ex. 7)

On July 1, 2017, the parent executed an enrollment contract with XXXXXXXXX XXXXXXXXXXXXXXXX for the 2017-2018 SY (10 month program) for $49,750 tuition. The contract included refund provisions if the parent withdrew the student and placed the student in a CSE recommended public or private school. (Ex. 15)

By letter dated July 27, 2017 the district informed the parent that at a July 26, 2017 Board of Education meeting the May 23, 2017 IEP, “which you have previously received” was approved. (Ex. G) The parent obtained the IEP by late July-beginning of August.

By letter dated August 18, 2017, the district was informed that the parent rejected the IEP and that the student would be placed at XXXXX and reimbursement would be sought unless defects were corrected and an appropriate placement identified. (Ex. A)

Bo response from the district was received. (T. 681-682)

Cases Presented

A list of documents in the record, submitted by the parties and the hearing officer, is appended.

The following testified on behalf of the district: Dr. XXXXXXXX, XXXXXXX, Dr. XXXXXX; XXXXXXXXX; XXXXXXXX. .

The following testified on behalf of the parent: Dr. XXXXXXX; the student’s mother (“the parent”).XXXXXX; XXXXXXXXX.

The testimony of the witnesses is summarized below.

XXXXXXXXX

Dr. XXXXXXXXX is the XXXXX Assistant Superintendent for Pupil Personnel services and Special Education. (T. 14) Her testimony included the following:

She had no knowledge of the student’s education during the 2017-2018 SY until she received the parent’s application for home instruction in February 2017 (T. 24-25, Ex. 6) XXXXXX staff later informed her that the student had been out of school “pretty much” from the end of October through the HI request and that by the time the HI request was made a referral to Child Protective Services was being considered at the urging of

XXXXXX. (T. 46-47)

The HI plan had included that XXXXXX would provide packets for each subject area and the tutors would work with that and send the completed work to XXXXXX to enable receipt of a diploma but all work was not completed and the student did not receive a diploma from XXXXXXXX. (T. 33, 40)

In conversations with Dr XXXXXX prior to the May 23, 2017 annual review the parent had “a couple of times” mentioned that she was looking at private schools. (T. 33) Dr XXXXXX received the Neuropsychological in April 2017 (T. 35, Ex. 7) and its recommendations had included a full-time special education school. The parent also expressed concern about the student being exposed to a Regents curriculum and Common Core standards which she believed were a cause of the student’s anxiety. (T. 34) XXXXXXXX only the math course implemented Common Core but XXXXXX had implemented Common Core at the tail end of his attendance there. (T. 34-35)

The CSE convened on May 23, 2017 for an annual review for the student’s 20172018 SY program (“the May 2017 review”) since he would be returning to the district and Dr. XXXXXX was a participant. (T. 95, 96, 33, 50 Exs. 5, 7) No evaluations were conducted by the district for the review. (T. 95) At the review, the CSE discussed the Neuropsychological at length and Dr. XXXXXX participated in that discussion. (T. 40,

51) Information was also provided by a participant from XXXXXX. (T. 51) The CSE discussed the XXX high school program that was ultimately recommended including a discussion of what was done in the ICT program and the expectation that students would graduate with a Regents diploma or better. (T. 40, 50) The guidance counselor discussed scheduling issues anticipated for the coming school year. (T. 41) A plan for transition to the high school was discussed, although not written, and would have the parent and student meet with the guidance counselor to discuss his schedule and enable the student to be familiar with a “friendly face” as well as the building and would also include a private tour of the building in August. (T. 50-51, 103-104, Ex. 7) The CSE also discussed the student’s XXXXXXXXX issue but a specific plan to deal with that was not addressed at the review. (T.59, 103, 106) However, the social-emotional support atructure in the school was discussed in general. (T. 59-60, 102) BOCES and/or nonpublic school placements were not discussed. (T. 108)

Dr. XXXXXX believed that the IEP satisfied all of Dr. XXXXXX’s recommendations but for a small school; the district’s high school has some 1100 students. (T. 62, 64, 71-81)

With regard to class sizes/ratios in the student’s recommended program, Dr. XXXXXXX testified that: the XXXX program rarely included more than 5-6 students with an IEP, although more would have been permitted, and that the 9th grade XXXX classes had 4-6 students with an IEP. (T. 53, 55). Further, class size in the XXXX Algebra class would have totaled between 5-8 students. (T. 100). The student’s XXXX science class would have had between 5 and 7 students. (T. 101) But for electives (Physical Education and Fine Arts) only two of the student’s classes (XXXX English and XXXX Social Studies) were “large” with 22 students each. (T. 59 or 101) The ICT classes were taught at all times by a general education teacher with either a special education teacher or a teaching assistant/paraprofessional (“TA”) who alternated. (T. 59,

100) All district TAs have at least 48 college credits, more than 90% are college graduates and some are certified teachers; the special education TA is supervised by the special education teacher with whom s/he constantly interacts. (T. 100, 113-114)

All XXXXX students in the grade meet with the special education teacher and his/her TA for one period each day. (T. 53) Specialized Reading Instruction, which included writing instruction if needed, had no more than 3 students and met every other day. (T. 57-58)

With regard to social -emotional support which would be provided, Dr. Leahy stated that a triad of guidance counselor, social worker and psychologist is assigned for each student in the school and “in particular for special education students.” (T. 60) If a problem, including school avoidance, emerges the team would work to address it. (T. 60, 102-103) In addition, every 3-4 weeks a risk team which include psychologists, social workers, guidance counselors the school nurse and all of the administrators in the building meets to discuss cases and possible interventions and strategies. (T. 60) Although not special education classes small support groups are provided including in ELA where actual English class content is pre-taught and re-taught. (T. 59) Dr. XXXXX stated that the supports the district provided were more intense than those at XXXXXX.

(T. 104)

OT was not provided but Dr. XXXXXXX’s recommendation in that area was programmatically implemented for special education students. (T. 76-77) ^[4]

Neither Dr. XXXXXXXX or the parent expressed disagreement with program at the review although the parent expressed concerns that the student would not go to school. (T. 66, 61) The parent did not state at the review that the student required a fulltime special education program. (T. 84) Dr. XXXXX opined that the district’s program was appropriate. (T. 64) She disagreed with claims that the student could not function in a mainstream environment even with support. (T. 73)

The school has a nearly 100% graduation rate for special education students, is integrated, de-tracked and heterogeneously grouped. (T. 64) All students have to take Regents exams but they need not pass them to receive a local diploma or a superintendent’s diploma; almost all special education students thus far have earned Regents diplomas. (T. 69-70)

XXXXXXXXX

Ms. XXXXXX is licensed clinical social worker with a private practice and is a certified school social worker who has worked in the high school for 16 years. (T, 120-

121) Her testimony included the following:

She never met the student and did not participate in the CSE review but read his IEP and the Neuropsychological. (T. 122-123, 140, 142) Her assignment includes counseling for students with IEP counseling mandates. (T. 122) This student would likely have been on her case load. (T. 125) She would have attempted to get to know the student by if necessary and possibly visiting the student’s house before the start of the school year in September or when school refusal manifested. (T. 126, 129, 131-133) Ms. XXXXX opined that it would be “essential” for a student with this profile to meet with the guidance counselor prior to commencing school. (T. 130) Consultation with an outside provider if there was one would be attempted so enable consistency. (T. 133-134)

If necessary for this student a unique plan would be developed to keep the student in the building once he arrived. (T. 136-137)

Even though only group counseling is on the IEP, for a newly entering new student with this student’s profile it would “not make sense” to put him in a group on “day one” prior to knowing him and his needs to determine an appropriate group and very often a student like this is seen with greater frequency and/or in individual session/s. (T. 122-128) A goal could then be to go into a small group setting. (T. 127)

Counseling sessions in the high school are for a period (40 minutes) notwithstanding the IEP specification of 30 minutes. (T. 144) Further, although a 6 day “cycle” is specified often and particularly for groups the sessions are held on a weekly basis (5 days) on a specified day of the week. (T. 144-145) Individual sessions are staggered so the same class is not missed each week. (T. 146)

Dr. XXXXXX

Dr. XXXXX is a certified school psychologist, a licensed clinical psychologist and a school district administrator, is Chairperson of the CSE and the CPSE and chaired the May 23, 2018 review. (T. 148-149) Her testimony included the following:

She saw the student once when she observed in a class in which he was at XXXXXX and has not seen him since. (T. 151, 168) She had no interaction with the parents or student from the time he commenced attendance at XXXXXXX until after the HI application was received. (T. 152)

Dr. XXXXX was aware that the student would not be continuing at XXXXX because the student was completing the 8th grade and she initiated planning for the next school year because XXXX was the district of residence. (T. 154-157, Ex. 3) Dr. XXXX stated that the district did not receive a parental request for a review for the 2017-2018

SY. (T. 156)

She was in possession of various documents prior to the review and although copies of those documents were not made the documents were at the review and available to anyone present who wished to look at them although no one requested that. (T. 161164, 195-196, 212-213, 217, Exs. 9, 11, B, D, E) Although all XXXXXX IESPs and evaluations had been requested prior to the review, the Speech Language Annual Review Progress Report dated March 2, 2017 (Ex. C) and the XXXXXX Psychosocial History dated November 2, 2016 (Ex. F) had not been provided and she had not reviewed them.

(T. 162-163, 196-199) 5 The district did not perform any SL or OT evaluations prior to the review. (T. 200)

The CSE requested that XXXXXX provide a regular education teacher who knew the student and a special education teacher but only the school’s educational coordinator participated in the review. (T. 199-200, Ex. 7-2) The district also invited the student’s resource room teacher and Dr. XXXXXXX, whose participation was also specifically requested by the parent. (T. 164-165) Dr. XXXXXX was scheduled first because his time was limited, he discussed his report and recommendations and participants had the opportunity to ask questions. (T. 166-167) Dr. XXXXXX told the CSE that the student’s profile required him to be in a separate school (T. 204)

Although the high school was not a ‘small school” as recommended by Dr. XXXXXXXXX opined that the CSE had met all other needs stated in that evaluation and there was nothing in the student’s profile that led her to believe that the district’s ICT program would not have been appropriate. (T. 171-174) Transition into the high school was discussed and would include meeting with the guidance counselor and gaining some familiarity with the school before the school year commenced. (T. 179, 184, Ex. 7-2) The student’s resource room teacher reviewed academic goals that she had developed for the student and most were adopted but it is district practice when there is a new student to have another meeting after the school year has commenced to consider the appropriateness of the goals. (T. 179, 215-217) The CSE discussed and provided a foreign language exemption in view of the student’s language and learning difficulties and XXXXXX. (T. 183) Counseling was provided to help the student access the curriculum XXXXXXXXX. (T. 184) SL therapy was warranted based upon the student’s CELF scores. (T. 184) Although she did not recall specific discussion of removal of OT, Dr. XXXXXXX’s concerns were addressed programmatically. (T. 202, 184-186)

The Psychosocial History is specified on the IEP and PWN. (Exs. 7, 8)

Modifications and testing accommodations appropriate for the student’s needs were provided. (T. 186-187)

Every person was invited to ask questions numerous times during the review. (T. 198)

The parent had previously informed the district that private schools were being considered. (T. 190) However, at the review the parent did not request consideration of a special education school and did not state specific disagreement with the recommendation but did express concern arising from the student’s school attendance difficulties. (T. 188)

Dr. XXXXXXX stated that the scores Dr. XXXXX reported for reading comprehension did not correlate: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX(T. 174-175, Ex. 9) She opined that achievement of the XXXXXXXXX in reading comprehension could not be an “accident.” (T. 175-176)

Dr. XXXXXX characterized the Neuropsychological as an “extremely, extremely, positive representation of the student” in view of his XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 169-170, Exs. 9,

6) However, she acknowledged that students can present differently when in a one to one setting versus a school-based setting and that some evaluators can develop a rapport with an individual student. (T. 203)

Dr. XXXXXX’s staff reported that the IEP was mailed to the parent twice in mid July 2017. (T. 207-208, 211-212) The parent stated that it had not been received and picked up a copy prior to receiving notice that the Board had approved the recommendation. (T. 206-207)

The CSE discussed that the XXXX program was more restrictive that the program the student had been receiving at XXXXX and would also provide an opportunity to be with typically developing students and have necessary support. (T. 177-178, 180-181)

XXXXXXXXXXXX

Ms. XXXXXXXXXXX is a high school 9th grade special education teacher. (T. 270-271) She stated that social studies was her “area of expertise.” (T. 271) She has never met the student and did not participate in the review. (T. 273, 318) Her testimony included the following:

As an inclusion teacher she pushes into ICT classes, alternating with the TA, to support the ICT and the general education students in the class. (T. 272, 278, 282) Both she and the TA take “inclusion notes” on what they see in each class during the school day and share them. (T. 276-277)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

(T. 279-280) The special education teacher has access to the student’s grades and assignments and receives general education teacher lesson plans each week. (T. 280-281) Lesson plans are based upon the Regents curriculum for math and science and the Common Core curriculum for the other subjects. (T. 320)

Every day (9th period) she conducts, with a TA, an academic enrichment class (“AEC”) which includes only her special education students with the 2 adults. (T. 272,

277) In the AEC she and the TA work on IEP goals and also support the curriculum through a variety of techniques and aids and, if necessary, plan lessons around tests. (T. 276, 286-287, 312-316) The student limit for that class is 12 but her usual AEC size is 4-

6 and she has never had more than 9. (T. 321)

For the 2017-2018 SY there were 3 9th grade special education teachers for the high school. (T. 276) She had a caseload of 4 inclusion students and a 5th student who was in a less restrictive model and the other special education teachers had similar caseloads. (T. 276, 319) There were about 8 students in the 9th grade Algebra class with a content teacher and a special education teacher or TA but she has seen up to 10 students in past years. (T. 283, 321) There were 2 Earth Science classes, with enrollments of 5 and 8 this year, although she has seen classes of up to 10, each with a content teacher and a special education teacher or a TA.. (T. 285)

To facilitate instruction, material is broken down, visuals and graphic organizers are utilized and group work opportunities are provided and smart boards are utilized. (T. 288)

Although she does not push in to ELA support classes, which are not part of a special education program, she does communicate with the teachers of her students. (T.

292, 322) The ELA support group provides support for the curriculum in a very small setting with a certified English teacher. (T. 293)

Once every 6 day cycle there is a “transition curriculum” class to focus on post high school. (T. 289-290)

Ms. XXXXXXXX described how the various IEP goals are addressed and progress monitored. (T. 292, 294-309)

Based upon her document review and her experience with students with similar issues she believed she could have successfully worked with this student. (T. 274) She described the nature of efforts made to deal with XXXXXXXXX and students who are new to the school/district (T. 274-276, 278, 291)

XXXXXXXX

Ms. XXXXXXXX is a 9th and 10th grade English teacher at the district high school and in the 2017-2018 SY taught two 9th grade inclusion classes of 20 with 3 inclusion students each and one 10th grade English inclusion class. (T. 326, 328-329,

340) She never met this student and did not participate in the review. (T. 327, 352) Her testimony included the following:

If the student had been in her class she would have immediately commenced joint planning with the special education teacher for that class and that joint planning would have been ongoing. (T. 328, 336-337) As the general education teacher she is primarily responsible for lesson plans and disseminating content but works closely with the special education teacher who can provide individual support for the student in the classroom. (T. 333-334, 339) Instruction and homework for inclusion students is differentiated and the AEC is used to prepare students for what is to come and as a review (T. 334, 344-345) Her lesson plans are provided to the student’s XXXXXXXX weekly as well as to inclusion staff and related service providers and she informs providers as to material coming up relevant to goals. (T. 342-342) In addition an ELA support group would have provided more one to one support for areas being worked on in the inclusion class. (T. 335-336) A lot of the goal areas would be addressed by her as part of the curriculum content. (T. 347) Report card grades are entered by her and are based upon a 50-50 model, i.e. product is 50 % and process is the other 50 % of the student’s average and when necessary there is communication with the special education teacher. (T. 349-351, 358)

She believed, based upon her review of the IEP and the Neuropsychological which showed issues for this student similar to those she has seen in others that the program was appropriate. (T. 327, 337) She was aware the student had

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXX (T. 330-333, 360-361) She believed based upon her review that the student was in XXXXXXXrange in terms of test scores so not necessarily functioning at a 9th grade level, but stated that that he was not “low.” (T. 354) She acknowledged that there were many reading and writing test results that were reported to be equivalent to XXXXXXXXX grade but noted that he had certain strengths.

(T. 355-356)

With regard to the student’s goals she stated that although certain goals would be based upon a 9th grade curriculum the measure for achieving the goal was reduced. (T. 356-357)

Dr. XXXXXXXX

Dr. Auciello is a pediatric neuropsychologist with over 19 years experience who at this time focuses on clinical evaluations. (T. 573-575) His testimony included the following:

In preparation for the Neuropsychological he reviewed prior IEPS, OT and SLT reports and information from the student’s treating psychiatrist and psychologist and the student’s teacher and parent. (T. 576) He did not speak to any of the student’s teachers.

(T. 632) During the testing the student showed a normal activity level and no signs of impulsivity but was quiet and subdued. (T. 620) There was nothing overt to indicate that the student was experiencing a lot of anxiety at the time of testing. (T. 627) There was no opportunity to observe the student in school. (T. 619)

The student’s record included prior diagnoses of at least XXXXX XXXXXXXXXXXXXXXXXXXXXXX. (T. 578) Dr. XXXX\ stated that the student’s

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXX (T. 578) In addition, he diagnosed XXXXXXXXXXX XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX . (T. 577-578) He characterized the student as very susceptible to XXXXXXXXXXXXXXXXXX who very much wanted to do well but in his then current academic setting XXXXXXXXXXXXXXXXXXXXX

.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (T. 579-580) He

opined that how an environment is dealing with the student’s XXXXXXXXXXXX would affect how anxiety impacted his learning. (T. 579-580)

Dr. XXXXXXXXX had administered three academic skills tests which provided “reading comprehension” scores but results in that category were discrepant: the WIAT 3 at the XXXXXXXX, the CELF at the XXXXXX and the Kaufman Test of Educational Achievement at the XXXXXXXX. (T. 584, Ex. 9) He acknowledged that the WIAT 3 score could not be an accident but described various possibilities that could account for the disparate results. (T. 584-585, 640) Further, he noted other test findings consistent with XXXXXXXXXXXXXXX. (T. 585-586) Dr. XXXXX opined that the lower scores captured who the student is as a reader and what he is taking away from reading. (T. 586)

With regard to the student’s cognitive development and intellectual functioning scores, his testing placed the student at the XXXXXXXXXXXXX consistent with earlier reports but not with the most recent prior report (Fall 2016) which very discrepant result Dr. XXXXXXXX attributed to the negative impact of a high level of XXXXXXXXXX in Fall 2016. (T. 620-623, Ex. 9) However, he agreed that although the Psychological Report conducted in November 2016, noted significant symptoms of anxiety, the examiner did not say that cognitive results were impacted by anxiety and he could not state specifically the source of his conclusion. (T. 621, 623, Ex. 11) Although his cognitive testing did not provide grade level equivalents, he believed that the student’s academic scores in the areas in which he was lowest were lower than what would be expected based upon the student’s overall cognitive level as he determined it. (T. 627)

He described the student as needing to be supported from a number of angles: a great deal of teacher support for attending, listening and completing academic activities in Case No. 511508 the classroom; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (T. 587-588) XXXXXXXXXXXXXXXXXXXXXXXXXX Dr. XXXXXX concluded that he required a small classroom environment in a small school which provided an environment with support throughout the school day in order XXXXXXXXXXXXX. (T. 588, 632) He concluded that the student could not function in a mainstream environment even with extra help and a second teacher in the room and pull out services to address academic skills development and stated that a standard larger classroom setting even with another teacher would be too distracting and demanding and result in the student feeling overwhelmed. (T. 589-590, 631)

Concerning the May 2017 review, Dr. XXXXXX testified that: He participated in the May 2017 review by telephone and reviewed his findings, diagnoses, conclusions and recommendations. (T. 590-591) The impact of the student’s XXXXXXX on his school attendance would “certainly” have come up. (T. 591) He did not think he was present for the whole meeting and could not recall if he was present when the district’s recommendations were discussed. (T. 591-592, 607)

With regard to a Regents diploma track he stated that it would be hard to imagine the student could meet requirements with success because of skills deficits. (T. 592)

With regard to Common Core issues he opined that the student would not be able to follow the Common Core prescribed for his age and noted his belief that the fact that the student had been unable to keep up with what was asked of him played a major role in his XXXXXXXXXXXXXXXXXXXX. (T.592- 593, 604-606)

With regard to specialized reading remediation, he opined that while the student would benefit from that it would not meet his need for in-classroom support with reading and writing. (T. 594-595) He had no knowledge of how instruction was provided in core classes in the district but opined it would be insufficient for this student. (T. 603)

With regard to an ICT model, he opined that it would not provide enough support for this student to enable him to XXXXXXXXXXXXXXXXXXXXXXXXXX (T. 596,

597) XXXXXXXXXXXXXXXXXXXXXXXXHe has never observed the district’s ICT program and had no direct knowledge of it. (T. 603) However, he also noted that ICT instruction was only every other day and opined that would be insufficient and was a “red flag.” (T. 602-603, 639)

With regard to a school with over 1000 children he opined that it set the student up to experience XXXXXXXXXXXXXXX (T.597, 644)

With regard to his recommendation of small class size he acknowledged he had not knowledge of class size at XXXXXX but for the specifications on the IEP. (T. 628629, 630) He did not believe the student’s learning and emotional needs could be addressed in a class of 22. (T. 643, 646)

With regard to certain strategies he recommended he did not think they could be adequately provided with the IEP created. (T. 639)

Dr. XXXXXXXX had recommended XXXXXXXX to be looked at based upon his observations in visits in connection with other children. (T. 598-599) His last visit was probably three years ago. (T. 601) He has not spoken with any of the student’s teachers at XXXXXXX and had no specific knowledge with regard to teacher certifications, class size and educational methodologies. (T. 602, 635-635) He has not seen the student since the evaluation. (T. 602, 610)

Mother (“the parent)

The testimony of the parent included the following:

XXXXXXXXXXXXX was student problems from at least about age 7 and intermittent XXXXXXXXX commenced in about the 1st -2nd grade. (T. 662) It substantially increased in Spring 2017 (7th grade) when his workload increased. (T. 663)

While at XXXXXXXXXX the student saw a XXXXXXXXX monthly and was seeing his therapist usually twice monthly but less in the winter of the 2016-2017 SY because he had XXXXXXXXXXXXXXXXX. (T. 660) The therapist’s sessions were discontinued after the student commenced attendance at XXXXXXXXXXX because the school provided counseling but he is currently taking Prozac. (T. 649, 705)

For 2nd grade he was removed from the district school and enrolled in XXXXXX because he was getting XXXXXXX, it appeared his school work was being affected and he had expressed a desire to go to that school in which his sister and other relatives were enrolled. (T. 649-651) XXXXXXXX is a general education school which follows the Common Core curriculum. (T. 656) The parent obtained a neuropsychological report during his 2nd grade (2010) (T. 649) The student commenced seeing a psychologist in the 2nd grade for XXXXXXXXXXXXXXXXXXXXXXXX and saw a XXXXXXXXX sporadically until about the 4th grade when thereafter he visited with regularity. (T. 652)

When the student was in the 5th grade at XXXXXXX an independent psychoeducational evaluation was conducted at the direction of his treating doctors because the student was XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 652, Ex. B) The parent was informed by the evaluators that the student, among other things, had language deficits and was significantly below grade level in academic areas and was being presented with work over his capacity. (T. 654-655) In a conference with the parent the evaluators recommended a smaller special ed type learning disabilities type of school with a nurturing setting and expressed hesitancy about enrollment at XXXXXXXX. (T. 654, 702 ,703, 718) The evaluators also expressed “great” concern about a Common Core based program. (T. 704, 718) The evaluation was provided to Dr. XXXXXXX by the parent and one of the evaluators participated in the XXXX review that year. (T. 655, 703, 715, Ex. B)

Although it is a general education school, the parent believed that XXXXXXX was consistent with the recommendations the parent received because it is a very small school with only 30 students in the grade, had classes of about 15 students and did not follow the Common Core. (T. 656-657) Daily resource room, and twice weekly speech language therapy and occupational therapy were provided there by the Westbury school district. (T. 656-657) The student was at XXXXX from 6th through 8th grade. (T. 656)

A XXXXXXXX CSE review was conducted on January 10, 2017 at the request of the parent because the student had not been attending school but for some XXXXXX provided services and sporadically for Social Studies since about October 24, 2016 due to anxiety. (T. 658, 663) The student’s XXXXXXXXXXXXXXXXXXXXXXXXXXXX.

(T. 659-660) They had opined that XXXXXXXXXXXXXX should be attempted in “baby steps” in order for the student to XXXXXXXXXXXXX (T. 659)

The parent had requested a XXXXXX review in November 2016. (T.658, 695, Ex. 4) The Psychological Report dated November 4, 2016 was obtained by XXXXXXX.

(T. 715, Ex. 11) The evaluator was aware of the XXXXXXXXXXXXXXXXXXXXXX.

(T. 715-716) The parent had no knowledge as to whether XXXXXXX was ever speaking about calling Child Protection Services because of the XXXXXXXXXXX. (T. 696)

The parent initially believed that HI was to be obtained from XXXXXX but subsequently learned that it was XXXXXXX responsibility. (T. 664) Her advocate at that time made an application. (T. 664) After discussions and various proposals, it was determined that the HI instruction was to provided in the student’s home. (T. 666). It began about the end of February 2017 and ended in June. (T. 667-668) Some appointments were canceled by the parent due to the student’s anxiety. (T. 707) There was difficulty in receiving necessary material from XXXXXXXX and the tutor noted student struggled with the math curriculum provided and informed the parent she had communicated that to XXXXX (T. 667-668,707, 719) The parent denied that she had been unwilling to have the student working on grade level material. (T. 707-708)

On March 29, 2017, the XXXXXX CSE reconvened and at the request of the parent’s advocate added 15 minutes per session to its resource room recommendation.

(T. 668-669, Ex. 5) The parent was referred to the district for a program review meeting for the 2017-2018 SY. (T. 669, Ex. 5) The parent was informed by her advocate that a request for an XXXX review was made by her. (T. 696-688) That also came up in the parent’s conversations with Dr. XXXXXX sometime in April. (T. 670)

The parent provided the Neuropsychological to XXXX shortly after she received it. (T. 670)

With regard to the XXXX May 2017 review the parent stated that: She had requested Dr. XXXXXXX participation. (T. 670) She did not agree with XXXXXXXXXXX representative’s report about the student’s functioning and the student’s therapists had reported that XXXXXXX staff did not understand his needs and that staff there were “very obstructive” (T. 671, 696) The student’s XXXXXX was discussed and its debilitating consequences reported to the CSE but the parent believed they did not know the seriousness and nature of his struggles and noted the lack of district observation. (T. 672-673) The student’s learning struggles in XXXXXXXXXXXXX XXXXXXXXX were discussed by the XXXXXXX resource room teacher. (T. 673) The parent was told about possible classifications/diagnose of IEP students in the ICT program. (T. 674, 708-709) The only other program option mentioned was a BOCES program for junior year. (T. 674) The parent was informed that there was only one “track” and the student would be following a Common Core curriculum and a Regent’s based curriculum. (T. 674) The parent expressed concerns because of the doctor reports she had received and student academic levels but the CSE stated confidence in the program for this student, noting its prior successes. (T. 675) Class size was not discussed. (T. 674) She recalled no discussion if being informed about an additional class that would provide ELA support. (T. 675, 711, 720) Although counseling and speech language therapy were mentioned there was no discussion about occupational therapy XXXXXXXXXXXXXXXXXXXXXX. (T. 676)

Regarding transition into the high school at the CSE review it was discussed that the student would visit the high school for 3 days to XXXXXX. (T. 676) When the parent called to set it up she was told it would not work because of finals and Regents exams. (T. 676) Her call was made prior to the Regents. (T. 693) However, the parent had informed the student about this proposal immediately after the CSE review and at that time he had stated that XXXXXXXXXXXXXX. (T. 693-694)

The parent very briefly visited the high school to obtain the student’s schedule in June-July to obtain the student’s schedule. (T. 677, 701) The student was not invited to attend by school staff but when asked by the parent said that he would not go into the school. (T. 701-702)

On July 31 the parent telephoned to inquire about receipt of the IEP, was told it had been mailed on about July 26 and said she would come in to pick it up. (T. 678)

Dr. XXXXXXXX had asked the parent to look into “learning disability schools” (“LD schools”) after the Neuropsychological. (T. 670) However, the parent had commenced looking at LD schools in November 2016 after discussions with the student’s medical team. (T. 678, 689, 712) She first researched XXXXXXX in March after she received Neuropsychological’s results and met with Dr. XXXXX, but she did not visit until June and signed the enrollment contract on July 1, 2017. (T. 680, Ex. 15) The contract provided for return of the deposit if by September the parent decided not to send the student there. (T. 698, 718, Ex. 15) The parent also registered the student in the XXX high school. (T. 698) The final decision not to send the student to the XXXX high school was not made until she received the IEP and reviewed its contents. (T. 700, 716)

None of the parent’s children has attended the XXXX high school and none have learning or emotional profiles similar to the student. (T. 690, 714) Prior the May 2017 review she did not know what program the CSE would offer. (T. 715) However, she has some knowledge of the school and believes the curriculum that would be required is too advanced for this student. (T. 690-692)

The parent stated that she was willing to consider the recommendations of the district. (T. 680, 689, 692) However, the student’s doctors had told her that the academic program at the school would not be appropriate. (T. 692) Further, she had discussed options with the student after the CSE review and he had told her he could not go into the school even for shadowing. (T. 680, 693-694, 699) The student XXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXX. (T. 681)

The parent received no communication from the district in response to her August 17, 2017 informing it of her intent to seek reimbursement. (T. 681-682)

The student transitioned in XXXX “very smoothly” and the somatic symptoms appeared to have subsided. (T. 682) In contrast to the past he did all his homework on his own, studied independently and felt confident. (T. 682, 684-685) The student’s absences were due to various illnesses as well as, on some occasions, his anxiety which was exacerbated by fear of failing behind. (T. 683-684, Ex, 13)

XXXXXX

Mr. XXXXX is Head of School at XXXXXXXXXXX School. (T. 396) He holds no licenses or certifications. (T. 396) He has had 10 years teaching experience in a general education private school teaching creative writing and theater arts. (T. 413, 430) His testimony included the following:

Mr. XXXXXX described XXXXX as a school for children with learning disabilities although it is as well a college preparatory school. (T. 397, 411-413, 428, 450451, 455-456) He characterized the school as a full-time special education environment consistent with Dr. XXXXXXX’s recommendation. (T. 422) In the 2017-2018 SY it had 54 students from 7 to 18 years old in grades 1-12, about 14 female and 40 male. (T. 397398, 429) The student population included children with language-based disabilities, school anxiety, dyslexia, dysgraphia and dyscalculia. (T. 398) Fifty-two students had IEPs. (T. 429) XXXX did not have students that were violent in nature or acting out. (T. 402, 429) Prior to granting admission the Neuropsychological was reviewed as well as IEPs and possibly other documents and the school did some informal evaluations. (T. 440-441) The school’s staff included “full time related service providers, in-house speech, occupational therapy, reading, counselors” and a sensory gym. (T. 399, 408) All related service providers were appropriately credentialed. (T. 425, 449)

The school had “a lot of modified curriculum” and provided small classes which enable support for special education students. (T. 399, 445) There were monthly and bimonthly staff meetings and frequent opportunities for staff interaction and communication. (T. 400) Parent-teacher conferences were held. (T. 400) Classes were no larger than 6-7. (T. 437) This student was in a class of 5-6 with always the same students but for math when one student left (T. 437-438, 460) Students were grouped for classes by age, academic and social ability by Mr. XXXXXX and XXX XXXXXXX. (T. 439-440) The school does not follow Common Core but does follow New York State standards and modifies instruction. (T. 445-448)

The student was absent 16 out of 60 days in the 1st term and 18 of 60 in term 2.

(T. 435, Ex. 13) Some of the absences were due to illnesses. (T. 452) Missed work due to absences was made up at home and there was a homework club in school which the student could participate instead of other clubs. (T. 434-435) In addition, if the student and teacher were free at the same time a tutorial might be provided. (T. 461)

The parent visited the school on May 9, 2017, Mr.XXXXX first met the student on May 24, 2017 and the student returned to the school on June 15. (T. 403) By letter dated June 16, 2017 the student was accepted. (T. 451) Prior to the student’s admission,

Mr. had reviewed the Neuropsychological and he testified as to how the school addresses issues of attention and executive functioning, significant delays in various areas of reading, writing and math, and high levels of anxiety and school avoidance and fine motor and graphomotor issues and stated that other students presented those issues. (T. 405-409)

A contract was signed by the family on July 1, 2017. (T. 411, Ex. 15) The parents are responsible for the entirety of the tuition but had not yet paid about one-half the tuition with the permission of the school. (T. 409, 414-415, 418-419, Ex. 14)

XXXXXXXX

Ms. XXXXXX has a certification in special education, was chairperson of the Concordia University teacher education department and is dean of students XXXXXXXX. (T. 464-465) Her testimony included the following:

The student was in 9th grade in the XXXX upper school. (T. 466-467)^[6] The upper school follows the New York State curriculum but modifies that curriculum in a variety of ways. (T. 467, 493486-487) Students were grouped by age, ability and grade and groups are changed if appropriate. (T. 468, 531) There were 7 classes in the upper school and also a group which gets more support. (T.530) The classes were “bridged” (one each for grades 7-8, 8-9 and 9-10 and two for grades 11-12. This student was in the 9-10 class. (T. 530-531)

In the 2017-2018 SY students were assessed two-three times yearly with CBM (curriculum-based management), a standardized instrument. (T. 468, 519-520) Woodcock Reading Mastery testing was done in September/October 2017 and was scheduled to be repeated in June 2018. (T. 489, 527, 533) Summative assessments (exams) and formative assessments (observation, projects, group work) were also used.

(T. 468-469, 518-519)

Professional development was provided at the school and outside. (T. 478) Ms. XXXXXXX worked with teachers with regard to curriculum modifications. (T. 478-479)

There were monthly full faculty meetings and usually twice monthly upper school meetings as well as professional days which provided opportunities for collaboration. (T.

(T. 469)

Ms. XXXXXX was in the student’s class frequently for varying periods of time.

(T. 494-495)

All students were required to take a social skills class, taught by the social worker.

(T. 478, Ex. 12)

There were 6 students in each of the student’s classes but for math which had 5.

(T. 471-473) The ages of students in his class were within about a year. (T. 428, 531-

532) Electives at the school usually did not exceed 8 students and could be only 2 students. (T. 479) Related services were provided only during elective periods. (T. 479) This student has two sessions per week of OT (2:1) and SLT (3:1) and one group counseling session per week. (T. 474, Exs. 11, H, I) Each session was 40 minutes. (T. 511)

The student’s ELA teacher was certified for English grades 7-12 and had completed everything necessary for special education certification but for one test (T. 472); his social studies teacher was certified for social studies and for special education grades 7-12 (T. 471); his science teacher was certified for science grades 7-12 and had credits toward a special education certification (T. 469-471; his math teacher is certified for math grades 7-12 (general education) and had 12 years of experience working with students with similar diagnoses and professional development and training for that (T. 472, 478, 492) Teachers utilized a variety of modifications and support strategies, including those recommended in the IEP. (T. 467, 480-482, 512-517, 523, 524-525, Exs. 7, 13) Testing accommodations were provided if necessary. (T. 517) The student did not receive specialized reading instruction at XXXXXX (T. 511) With regard to reading instruction, the student’s ELA teacher worked with him individually on reading during the class. She was not a certified special education instructor at that time and was not a special education reading instructor. (T. 491-492)

The XXXXX ninth period (“club period”) included opportunities for academic work including via a daily homework club supervised by a teacher and a mandator studies skills program 1x per week for 10 weeks. (T. 476-477, 502) At least one teacher offered a tutorial each day and but for the days when study skills program was provided could require the student’s attendance. (T. 476, 477, 481, 497, 503)

Some of the student’s absences were due to illness but not all. (T. 482) There was family contact whenever the student was absent to determine the cause of the absence. (T. 483) With regard to making up work after absences, the student arrived early and could make up work during that that time, during electives periods and 9th period as well as at home and all work missed was made up. (T. 482, 497-498, 503-504,

520) He could go to clubs but went to tutorials and homework club “quite frequently.”

(T. 503-505)

Student report card grades (3 times yearly) are based on class participation and class work (60%), assessments, (25%) and homework (15%). (T. 483, Ex. 13) Work in tutorials and makeup work is factored in. (T. 499-500, 521)

Ms.XXXXXXX testified that the student made academic and social emotional progress during the 2017-2018 SY. (T. 485-486, 483, 488, 491,501, Ex. 13) She did not, however, have knowledge as to the student’s current reading level. (T. 493)

Findings of Fact and Conclusions of Law 7

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held.

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

In New York State the DOE bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed

Record citations not specified below are included above.

by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b];^[8] NYCRR 200.6[a][1]).

The parent asserts that the district has failed to establish that its program was appropriate. I agree.

School Avoidance and XXXXXX

It is undisputed that the student is very pleasant, cooperative, hard-working and perseverant with no behavioral issues. (Exs. 7, 9-3, 9-5., III)

The evidence shows the student manifested XXXXX as early as the 2nd grade, in , when he was diagnosed XXXXXXXXXXXXXXXXXXX XXX XXXXX

XXXXXXX (B-1) 8

The student continued to have academic difficulties notwithstanding being a hard worker, and receiving district provided services as well as parentally provided tutoring from a teacher with a special education background. (Ex. B)

By the 5th grade although he attended school, resistance was developing. (Ex. 92)

Parentally obtained independent evaluators diagnosed XXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXX. However, they stated that the student was “acutely aware “of his learning difficulties and his self-esteem was significantly impacted. (Ex. B-10) They reported that the student had self-doubt regarding his performance and capabilities which was exacerbated by concerns that he could fullyXXXXXXXXXXX XXXXXXXXXXX

XXXXXXXXX. (B-10) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

were “striking”. (B-12)

The parent placed the student in XXXXXXXX, a small mainstream school with classes sizes of no more than 15, whereXXXXXXX provided resource room and other services. XXXXXX symptoms were mild in intensity and frequency in the 6th grade when the student started at XXXXXXXXX. However by Spring of his 7th grade year the student began to exhibit school avoidance behaviors with numerous absences and nervousness and XXXXXXXXXXX. (T. 662-663, Ex. F-4) Although the number of absences is not in the record, I note that the parent’s testimony with regard to 7th grade attendance was not contested.

Shortly after the 8th grade commenced the student began exhibiting school and social avoidance behaviors and in October attended only 8 days before effectively ceasing all XXXXXXXXX class attendance on about October 24, 2016. (Exs. F-5, 4)

The November 4, 2016 Psychological Report conducted for XXXXXXX noted cooperation, motivation, concern about performance and a variable level of selfconfidence with the student reporting XXXXXXXXXX during the school week which contributed to his school avoidance. Evaluation results indicated XXXXXXXXX XXXXXXXX particularly related to school achievement and concerns about being rejected due to poor achievement. (Ex. 11)

Various efforts directed to getting the student to return to school were attempted but unsuccessful. (Ex. 6-3)

In February 2017, in a request for Home Instruction the district was informed by the student’s treating XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX was impeding his ability to attend school. (Ex. 6-4)

In February 2017, Dr. XXXXXXX reported a XXXXXXXXXXXXXXXXX

XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX was

exacerbated by the apparent disconnect between the student’s learning needs and the demands being placed upon him. (T. 579-580 Ex. 9-5, 9-7) Dr. XXXXXXX participated in the review and the student’s anxiety was an issue discussed by him. (T. 591)

I note that the student’s history was summarized in the Neuropsychological. (Ex.

9) It was also discussed in the Social History (Ex. F) . Although Dr. XXXXXX testified that the Social History was not provided to the CSE, I note that it is referenced in district’s IEP and PWN as well as in the district’s response to the due process complaint and find Dr. XXXXXXXX’s testimony with regard to that unreliable. (T. 163, Exs.7, 8,

2) The parent credibly testified that the 2014 Pyschoeducational was in the district’s possession and that claim was not contested. (T. 655, 703, 715) CSE knowledge of the other above referenced documents is not disputed.

Accordingly, the CSE had knowledge of the student’s XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX in relation to school and his academic performance there.

Further, no one at the CSE review knew the student and the district has not contested the student’s XXXXXX in relation to school. (Ex. III) I note that the CSE incorporated the conclusions of Dr. XXXXXXXXX in the IEP which states that the student XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXX (Ex. 7-8)

Notwithstanding the foregoing the district failed to develop a program which appropriately address the student’s social-emotional needs. I note the following:

The IEP provided one 30 minute group session in every 6 day cycle. (Ex. 7) I do not consider the testimony of social worker XXXXXX that the period would have been larger, the frequency of sessions somewhat greater and individual sessions rather than group would likely have been provided initially as that testimony is “retrospective” and therefore precluded. (T. 144-145) RE v. New York City Dept. of Ed., 694 F3d (2d Cir. 2012)

I find no basis for a conclusion that one 30 minute group session every 6 days would be appropriate for this student. I note that Ms. XXXXXXX testified that it would not make sense to put the student in a group on “day one” prior to knowing him and his needs in order to determine an appropriate group and that for a student like this one greater frequency and/or individual sessions would very often be required be required at the start with a goal to go into a group setting. (T. 122-128) I note that the record includes no explanation for the determination made by the CSE. ^[9]

Although a transition plan was discussed it was not put on the IEP and, further, the parent’s testimony that she attempted to implement it but could not due to district constraints has not been contested by the district. With regard to any other plan to get the student into the school and to provide sufficient support for XXXXXXXXXX to continue, the district asserts that a qualified XXXXXXXXXXXXX team would consider the issue. (T. 59-61) I am persuaded that social emotional support teams were described at the review although, as Dr. XXXXXX acknowledged, no specific proposals were discussed other than school visits prior to the beginning of the school year. At the hearing Ms. XXXXXX testified as to certain steps that might be taken. (T. 126, 129, 130-134) However even had those possibilities had been discussed at the review, the CSE did not create a plan, memorialized on the IEP, which the parent could consider and the CSE would be obligated to follow. Such a plan, could include, for examples, checkins, assigning a point person at the school to help transition the student back to school, placing the student in a small group for students with school XXXXXX , providing certain instruction outside of school. That was not done. Essentially the district proposed only, in effect, “trust us, we will work it out.” That is not sufficient. Appeal No. 17-024

The district also claims that the academic program it was providing would reduce the student’s XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX(Ex.

III) However, even assuming arguendo that the student would have some success in the academic program provided, that success would certainly not be immediate and I conclude would depend upon the student’s attendance issues being appropriately addressed from the time he entered school. However from the start of the school year the student would have been in at least two chasses of some 22 students, most without disabilities, and following a 9th grade program,XXXXXXXXXXXXXXXXXXXXXX.

It is also noteworthy with regard to the student’s emotional support needs that he was entering a large school although his previous placement was a small one and that he was beginning high school, a different experience.

School attendance XXXXXXXXXXXXXXX is a central issue in this matter. If those issues are not appropriately addressed the student would be in effect prohibited from receiving benefits from other aspects of his program. The district has not established that it developed a program that was appropriate to address that issue. Accordingly, it has failed to establish that its program was reasonably calculated to enable this student to make meaningful gains in light of his circumstances and therefore has failed to establish it provided a FAPE.

In view of the foregoing I need not address the parent’s other claims. However, I make the following findings re the parent’s other claims:

District’s Program Recommendation

I credit the testimony of the district’s witnesses with regard to the class sizes, staff and methodologies of the program recommended.

The district provided as the student’s special education program: ICT every other day in a 6 day cycle for ELA, Math, Social Studies; a daily Academic Enrichment class (12:1:1); specialized reading instruction 3:1 every other day in a 6 day cycle; and speech and counseling. I find that the district’s special education program, as specified above, provided more academic support than the student received at XXXXXXXX with XXXXXX provided related services.

In addition to but not as part of his special education program the student would receive additional academic support: 1) in his ICT classes on alternate days from a TA who coordinated with and was supervised by the special education teacher resulting in there always being 2 adults regardless of the size of the class; 2) in a small ELA support group taught by an English teacher. Neither of these supports was mandated on the IEP. Accordingly, that the student would have received them may not be considered. R.E.

No class sizes are specified in the IEP for the ICT classes. Therefore, testimony concerning the limited size of certain ICT classes may not be considered. R.E. However, I note that I find credible the testimony that at the CSE the parent was informed that the ICT classes for math and science would be “small.” However, there is no testimony supporting a claim that precise numbers were discussed. With regard to CSE class size discussion, I find the parent’s testimony that class sizes were not discussed at all not reliable and note that the parent did not recall repeated testimony concerning the ELA support group earlier in the hearing. (T. 675, 710-711) However, I conclude from the evidence in the record that district discussion was cursory.

The CSE recommended a coordinated program which I have concluded provided more support that the student received while he was attending XXXXXXXXX. Absent this XXXXXXXXXXXXXXXXXXXX the evidence indicates that it could appropriately address his learning disabilities and XXXXXXXX.

However, the evidence also shows that in addition to his other disabilities this student at the time of the review experienced XXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. To what extent

the situation would be otherwise had he received appropriate special education services earlier, is not relevant.

No one at the CSE knew this student. No evaluations were done or sought to be done by the district. The CSE relied upon the evaluation of Dr.XXXXXXXXXXXXX. He recommended a “highly supportive, full-time special education environment that includes a small school and small student-teacher ratio in the classroom” stated that the student’s many challenges “would not make it possible for him to function in a mainstream environment even with support.” (Ex. 9-7) Although his recollection of what occurred at the review was limited he testified that he had reported on his recommendations and discussed the XXXXXXXXXXXXXXX. He testified that the student required a small classroom environment with support throughout the school day to attend school and remain there. (T. 588, 632)

The district asserts that its program recommendation was consistent with Dr. XXXXXXXXXXXXX recommendation but for the small school requirement. I do not agree and find it was substantially at variance with that. The district recommended a general education program with special education support (ICT) on alternate days and some additional supports in a large mainstream high school. Further, the district was aware that the student would be in a class of 22 at least twice a day with some 75 % of the students typically developing and with the class doing grade level work substantially beyond this student’s capacity of XXXXXXXXXXXXXXX. I conclude that situation would reasonably be expected to XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXX regardless of the additional academic support he would receive.^[10] For this student, the most likely result would be school avoidance which would limit if not preclude entirely his benefiting from the academic aspects of the program.

I note that although Dr. XXXXXXXX had limited knowledge of the specifics of the district recommended program, I find that program inconsistent with his recommendations and conclusions.

Finally, I note that the IEP provided only one 30 minute group period of counseling which I have concluded was insufficient for the reasons discussed above with regard to the district’s program to address the XXXXXXXXXXXXXXXXXXXX.

Based upon the foregoing I find that the district has failed to establish that it provided a program reasonably calculated to enable the student to make meaningful gains in his circumstances and therefore it has failed to establish it provided a FAPE.

Predetermination and Meaningful Participation

The evidence shows that the parent had a full opportunity to express opinions and ask questions. (T. 198) Dr. XXXXXX participated and reviewed his findings, diagnoses, conclusions and recommendations. (T. 590- 591) The parent however, asserts, that the CSE did not appropriately consider Dr. XXXXXXXX recommendation and out of district options for this student and that that constitutes impermissible predetermination which denied the parent meaningful participation. (Ex. IV-22)

Although the district notes that neither Dr. XXXXXXXX nor the parent specifically objected to the CSE’s recommendation and that the district’s consideration of a special education school was not requested, I give that no weight. (T. 188, Ex. III) There is no evidence indicating that Dr. XXXXXXXX was present when the recommendation was made. Moreover the district was aware of his opinion that the student could not function in a mainstream school even with supports and that he required a small school. (T. 204, Ex. 9) It is undisputed that the parent indicated reservations about whether the program proposed would be satisfactory in view of the student’s

XXXXXXXXXXXXXXXXXXXXXX. (T. 188)

The XXXX high school is integrated, de-tracked and heterogeneously grouped.

(T. 64) Although it provides a small number of self-contained classes for more substantially disabled students, it is undisputed that those classes would not be appropriate for this student. (T. 107) Further, it is undisputed that no BOCES or other out of district programs were considered by the CSE. (T. 107) However, the foregoing does not I conclude demonstrate predetermination in the circumstances here.

District witnesses credibly testified concerning their special education students’ success in the high school and opinions after review of the evaluative material and based upon those experiences that the program recommended was appropriate for this student. Although I have concluded that the CSE recommendation was not appropriate I find no basis for a conclusion that the CSE’s determination was not made in good faith and was predetermined by what the district had available.

Occupational Therapy

The parent asserts claims with regard to occupational therapy in the post-hearing brief. (Ex. IV) Those claims were not alleged in the complaint in which there was no reference whatever to OT. However, it is well established that although the scope of an impartial hearing should be limited to the issues raised in the due process complaint that may be considered waived if the district “opened the door.” 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F(3)(B). Appeal No. 18-033

In direct examination of Dr. XXXXXXXX and Dr. XXXXXX the district inquired regarding OT. (T. 75-76, 184) The district asserts that the testimony with regard to that issue was elicited only to explain the differences between the recommendations made in the IEP as compared to the recommendation in the Neuropsychological. (Ex. III-

23) However, on cross examination the parent inquired concerning whether an OT evaluation was conducted as well as to the discussion at the CSE review of OT and any student need for that service. (T. 96, 200-202) No objection to that inquiry was asserted by the district. I conclude that the district waived objection on “scope” grounds and therefore I consider the parent’s OT claim.

The November 2016 Psychological evaluation stated that the student “would benefit from updated occupational therapy…evaluations to determine the appropriate level of service.” (Ex. 11-5) On January 10, 2017, the XXXXXX CSE continued the student’s OT service of two 30 minute group sessions per week, noting decreased upper body strength and difficulties in the areas of visual motor and visual perceptual skills and specifying OT goals. (Ex. 4) That CSE apparently relied upon a 2014 OT evaluation and a February 2016 OT progress report. (Ex. 4) It is undisputed that the student has a documented history of motor and sensory difficulties. (Ex. 6-4)

Although the XXXX CSE did not conduct an OT evaluation it nevertheless eliminated all OT from the student’s program without any discussion of that issue in the IEP. (T. 96, 200, Ex. 7) Dr. XXXXX acknowledged that she could not remember how that happened although she stated that student OT needs were discussed. (T. 201-202) However, I conclude that any discussion there may have been was limited to consideration of Dr. XXXXXXXXX’s recommendations and the district’s program with regard to the issues he raised. There is nothing in the record to indicate otherwise. However, Dr. XXXXXXXXX is not an occupational therapist and his recommendation in that area could not be reasonably expected to be comprehensive.^[11] Further, with regard to any CSE consideration of the student’s OT needs I note that testimony indicates that as a matter of policy the district did not provide OT services for students not in its “core classes” for more disabled students. (T. 75)

I conclude that the failure to conduct an OT evaluation before removing OT from the student’s IEP was a procedural violation of the IDEIA. However, I conclude that that violation alone does not rise to the level of a denial of a FAPE in the circumstances here. I is well established, however, that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 123 (2d Cir. 2016) (quoting R.E., 694 F.3d at 190).

Goals

The parent asserts that the IEP was deficient with regard to annual goals specifically noting certain academic goals. (Ex. IV-24) The evidence is persuasive that the academic goals were developed by the student’s special education provider at XXXXXX, that that teacher participated in the review, that the goals were discussed and that the CSE adopted most of the teacher’s proposed goals. (T. 179, 215-216) There is mothing in the record indicating that there was any disagreement or claim by any CSE participant that the goals were inadequate, inappropriate or required development or deletion. Further, district staff persuasively testified as to how to the goals would be implemented. (T. 294298, 304-306, 308-309) I find that the goals were drafted to correlate with the student’s needs and abilities as legally required. I also note the credible testimony of Ms. O’Brien with regard to a reading goal referencing 9th grade material that although the goal may be based on 9th grade curriculum the measure for achieving it was reduced for this student.

(T. 356-357) Therefore I do not consider the district’s claims concerning how and when the goals could be revised except to note that there is nothing in the record indicating that the parent was informed of that district practice. (T. 302-303)

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115. Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

Mr. XXXXXX and Ms. XXXXXXX testified concerning the program provided to the student at XXXXXXXXXX and I find their testimony credible.

It is undisputed that that the student is a sweet, kind and cooperative boy with no behavioral issues but with XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

X. (Exs. 7, III-1)

The evidence, detailed above in the Cases Presented section, shows that XXXXXX is a small independent school for students with diagnoses including learning disabilities, ADHD, and school-related anxiety but no behavioral issues. It offers a modified curriculum and related services, through small classes of no more than 6 in core academic areas and 8 for electives. The student fit the profile of students at the school and he was grouped with a functionally similar peer group. The student received related services of SLT, OT and counseling from appropriately credentialed providers consistent with the recommendations and conclusions of the CSE as well as of Dr. XXXXXXX. (Exs. 7, 9)

Instruction was individualized and curriculum was modified to address the student’s needs. Instructional strategies included those recommended by the CSE. Teaching staff was appropriately supervised and communication between staff about the student was ongoing. His XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX were addressed XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The student

was comfortable in the school.

Although a finding of progress is not required for a determination that a student’s unilateral placement was appropriate, persuasive evidence shows that the student significantly improved in the 2017-2018 SY with regard to school refusal and anxiety.

(T. 420, 483, 501, 521) His academics, peer relationships and ability to self-advocate improved as well. (T. 486, Ex. 13) Improvement with regard to school and school related activities was also observed by the parent. (T. 683-684)

However, the district asserts that the parent’s burden to establish the appropriateness of XXXXX has not been met. (Ex. III)

The district notes that Dr. XXXXXXXX recommended a “full time special education program” and asserts that XXXX does not qualify as that because the student’s education was not provided by appropriately certified special education teachers. However, it is well established that certified special education teachers are not required in a parent’s unilateral placement. Here, all of the student’s core subject teachers were appropriately certified general education teachers and one had special education certification.^[12] All but one of the others (the student’s math teacher) had special education degrees or substantial special education course work and the math teacher had considerable teaching experience with children who presented with this student’s issues. Further, Ms. XXXXXXXX is qualified and experienced as a teacher educator (T. 464-

465) and was available for supervision and training. Additional professional training was provided by the school.

The district asserts that Dr. XXXXXXXX had no current or sufficiently detailed information about XXXXX and his testimony with regard to it was therefore unreliable. However, my conclusion with regard to the appropriateness of the XXXXXXXX placement relies upon the testimony of the XXXXX witnesses concerning the details of its program. Nevertheless, I note that Dr. XXXXXX testimony about the environment this student required, in contrast to a large high school, is consistent with the current XXXX program.

The district claims that the student’s absences in the first 2 trimesters indicated that XXXX did not appropriately address his XXXXXXXXXXXXXX.^[13] The evidence shows that the student ‘s attendance in the first 2 trimesters was substantially XXXXXXXX XXXXXXXXXXXX although the record is unclear as to the precise extent. Nevertheless there was a substantial improvement over the prior year when he essentially refused to attend at all from mid October. With regard to the adequacy of the student’s attendance improvement I note that the CSE ‘s goal addressing this issue required 70 % to demonstrate success, approximately the same level as achieved in

XXXX. (Ex. 7)

The district claims with regard to the issue of progress that the student’s grades should not be considered in evaluating that and determining that academic progress was made. I give that claim no weight. The student made up work missed in tutorials, homework club and early attendance, and that work factored into his grades. Clearly, he did not participate in class on the days he was not attending but his grades provide an indicator of his participation when he was. The progress report details the nature of progress made. (Ex. 13) Although there has been no objective evidence of the degree of academic progress submitted, I note that progress is only one factor to be considered in determining whether a program was appropriate.

The district claims that the program was not appropriate because it was not the LRE, I agree that there is no indication that the student had an opportunity to interact with nondisabled peers. Nevertheless, parents are not as strictly held to the standard of placement in the LRE as are school districts and I have concluded that the program provided adequately met the student’s special education needs and allowed him to make progress. Appeal 17-094

The district claims that that the program is deficient because it did not include specialized reading instruction to address the student’s reading deficits. The evidence shows that the student was receiving reading instruction in his ELA class from a certified teacher who had completed everything required for special education certification but one test. (T. 472, Ex. 13) Various techniques recommended by the CSE were utilized. (Ex. 7,

13) Although there is no evidence that a specific reading methodology was utilized, I find that the absence of specialized reading instruction is not a basis for determining that the program as a whole was not appropriate. I note that a parent is not required to provide a perfect program and is not held to the same requirements as is a district.

Based upon the foregoing I conclude that in totality of the circumstances the parent has stablished that the XXXXXXXX program was reasonably calculated to lead to meaningful educational gains in this student’s circumstances.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)

In this matter the district does not assert that the parent did not cooperate with the CSE in developing its recommendation. (Ex. III) Further, I note my conclusion that the evidence would not support such a claim. Rather the evidence shows that the parent participated in the review, provided evaluative material, was cooperative through the entirety of the IEP process, was forthright about review of private schools and did not engage in any conduct to prevent the CSE from carrying out its responsibilities. Further, the parent provided proper notice of disagreement with the CSE’s recommendation and intention to place the student in a private school and seek district funding.

The district asserts, however, that the parent was “never open to placing [the student] at a [public school.” (Ex. III) It notes the private school placements of the student and his siblings, and that the parent had been investigating private schools prior to the review and signed an enrollment contract with XXXXXXXXX on July 1, 2017. However, the parent’s testimony that she was open to a CSE placement that she believed appropriate and that the siblings did not present similar issues was credible and not rebutted by the evidence here. Moreover, as discussed above, a parent’s preference for a private school is not dispositive. Further, I note that the XXXXXXXX enrollment contract included a refund provision if a CSE recommendation was accepted and I find that the parent’s early and continuing interest in exploring possible placement options was reasonable in view of the student’s circumstances.

In the circumstances here I find no basis for a denial or limitation of district funding on equitable grounds.

ORDER

The district shall reimburse the parent for tuition at the XXXXXXX for the 20172018 SY, not to exceed $49,750, upon receipt of evidence of parental payment. The district may require evidence that the tuition charged was the school’s usual and customary rate.

Dated: October 4, 2018

____s/s_________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

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

EXHIBITS

District

1 Due Process Complaint, 1/2/2018, 5 pgs.

2 Answer to Due Process Complaint, 1/22/2018, 8 pgs.

3 Consent -Release of Confid. Info., XXXXXX UFSD to XXXX, 3/13/2017, 1 pg.

4 2016-2017 XXXXX UFSD Requested Review IESP, 1/10/2017, 12 pgs.

5 2016-2017 XXXXXX UFSD, Reevaluation/Annual Review IESP, 3/29/17

6 Application for Out of School Instruction, 2/2017, 4 pgs.

7 2017-2018 XXXX UFSD Requested Review Transfer Student with sign-in sheet,

5/23/2017, 17 pgs.

8 Prior Written Notice

9 Private Neuropsychological and Educational Evaluation Report, (XXXXXXXX),

2/23/2017, 1 pg.

10 Consent for Release of Records/Information, 5/23/2017, 1 pg.

11 Psychological Report (XXXXXXX), 11/4/2016, 5 pgs.

12 XXXXXXX Schedule,

13 XXXXXXX Report Card through Second Trimester, 2017-2018, 10 pgs.

14 XXXXXXXX Tuition Statement, 4/19/2018, 1 pg.

15 XXXXXXXX Tuition Contract, 7/1/2017, 3 pgs.

Parent

A Notice to Unilaterally Place Child, 8/18/17, 3 pgs.

B Psychoeducational Evaluation, conference 1/19/14, 18 pages

C Speech/Language Annual Review Progress Report, 3/2/17, 10 pgs.

D Speech/Language Evaluation, 4/8/14, 10 pgs.

E Speech/Language Evaluation, 2/7/14, 4 pgs.

F Psychosocial History, 11/2/16, 6 pgs.

G Letter from Dr.XXXXXXXXXx, 7/27/17, 1 pg.

H XXXXXXXXX Progress Report, Counseling, 5/9/18, 1 pg.

I XXXXXXX OT Report for Annual Review Mid April/Early May 2018, 1 pg.

Impartial Hearing Officer

I Compliance Date Extension Decisions

II Subpoena with objections and response

III District Closing Memorandum

IV Parent Closing Memorandum

---

Footnotes

[1] This Background section is included herein as Findings of Fact.

[2] The record is inconsistent with regard to when the student was first classified and also indicates that the student was receiving parentally provided services from age 3. T. 649, Ex. F)

[4] Evidence indicates that OT is only provided but for students in the Core Program which includes students with Down Syndrome, Traumatic Brain Injury and Severe Autism. (T. 76)

[6] The specification of Grade 10 on the Progress report (Ex. 13) and a related service progress report (Ex. I) are clerical errors. T. 528-529)

[8] In the 2nd grade XXXXX associated with strep infection appeared. (Ex. B) However, by the 5th grade the XXXXXX symptoms had remitted and at that time the student no longer required medication for that. (Ex. B) XXX symptoms reappeared by the 8th grade. (Ex. 6)

[9] With regard to the relevance of a similar XXXXXXX counseling provision (1x40 per week), I note that that was a much smaller school with no classes more than 8 students and core classes for this student of 6 students or less and that virtually all students had IEPS and similar disabilities.

[10] I note my conclusion remains the same even upon consideration of support provided that was not part of the student’s special education program as mandated on the IEP.

[11] It is noteworthy that the OT provided in XXXXXX during the subsequent school year noted numerous OT issues, some involving safety. (Ex. I)

[12] The student’s science teacher from September-February also had a special education certification.

[13] Information about the student’s attendance during the 3rd trimester was not presented at the hearing. Specific information, to the extent it was available was to be provided to the district subsequent to that testimony. (T.501) No additional information concerning 3rd trimester attendance was entered into the record.