Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:512369

Student’s Name:REDACTED

Date of Birth:REDACTED

District:REDACTED Union Free SD

Hearing Requested by:Parent

Dates of Hearing:August 29, 30 2018

November 8, 14 2018

December 11, 2018

January 15,2019

February 6, 27 2019

March 5, 2019

May 6, 23 2019

July 2,2019

September 11,2019

Actual Record Closed Date:May 5, 2020

Hearing Officer:Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 29, 2018

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDAss’t Sup’t. Pupil Services REDACTED UFSD

August 30, 2018

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDAss’t Sup’t. Pupil Services REDACTED UFSD

November 8, 2018

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDAss’t Sup’t. Pupil Services REDACTED UFSD

November 14, 2018

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDAss’t Sup’t. Pupil Services REDACTED UFSD

REDACTEDSchool Psychologist REDACTED UFSD

December 11, 2018

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDSchool Psychologist REDACTED UFSD

January 15, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDSpecial Education Teacher REDACTED UFSD

February 6, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDREDACTED/PrincipalParent

February 27, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDGuidance Counselor Parent

March 5, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDTeacherParent

May 6, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

Jessica LangdonTeacherParent

May 23, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

July 2, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDTeacherParent

September 11, 2019

REDACTEDAttorneyParent

REDACTEDFatherParent

REDACTEDDistrict AttorneyREDACTED UFSD

REDACTEDPsychologistParent

REDACTEDAss’t Sup’t. Pupil ServicesREDACTED UFSD

DISTRICT’S EVIDENCE

Exhibit #Date No. of Pages Description

603/15/182Parent Meeting Notice

613/26/1814IEP

623/25/184Prior Written Notice

PARENT’S EVIDENCE

IHO EVIDENCE

I37 pages Parent’s Closing ArgumentDecember 2, 2019

II60 pages District’s Closing ArgumentDecember 2, 2019

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, NYSED Case# 52369. The hearings were conducted at the REDACTED, School District, REDACTED, New York. The student’s parent submitted a request for an impartial hearing dated February 20, 2018 on February 20, 2018.At the hearing, its attorney REDACTED, represented the REDACTED, UFSD hereinafter referred to as the “District” and REDACTED, Esq. represented the parent.

BACKGROUND

At the time of the hearing REDACTED, was a REDACTED, -old REDACTED, who was attending Nassau County Community College. The District was aware that he is a student with a learning disability and classified as a child with “Autism”. The child and his Parent requested the impartial hearing alleging, inter alia, that their son was denied access to a FAPE by the “District” through the actions of the Committee on Special Education (“CSE”); Parent’s attorney alleges that the CSE failed to offer a valid and appropriate IEP and service recommendations for the following school years:

2015-16; 2016-17 and 2017-18.The Parent is seeking funding/reimbursement for placement for their REDACTED, at the REDACTED, for the school years in dispute.

THE DISTRICT’S POSITION

The District asserts that it provided a FAPE under the meaning of the IDEA.REDACTED, was enrolled in an appropriate Program during all contested school years and made meaningful academic and social progress. The District maintains that it reasonably calculated the IEP to provide educational benefit in the least restrictive environment (LRE).

Although the parents’ complaint alleges a “denial of FAPE” for the school years 2015-2016, 2016-2017, and 2017-2018 school years., the District maintained that the time period covered by the due process complaint is limited by regulation to the time beginning two years prior to the filing of the due process complaint. Therefore, any period prior to February 20, 2016 is outside the time limits allowed by regulation.

THE PARENT’S POSITION

That the District failed to offer a FAPE under the meaning of the IDEA and that the recommendations and Individualized Education Program (“IEP”) was not reasonably calculated to enable REDACTED, to receive educational benefits and to meet his unique special education needs for the 2015-2016, 2016-2017, and 2017-2018 school years.

Counsel for the family maintained that evidence would establish that: (a) the District failed to meet its burden in establishing REDACTED was provided a FAPE during the 2015-2016, 2016-2017, and 2017-2018 school years, (b) REDACTED, unilateral placement at the REDACTED, was appropriate, and (c) the equities favor full reimbursement of the costs attendant to that placement to the parents.

THE PARENT’S CASE

As per REDACTED, father (hereinafter referred to REDACTED or REDACTED), his son was diagnosed with multiple disabilities, among them ADHD; over time that diagnosis came to include Autism Spectrum Disorder. (Tr. at 1117). He received special education services from a young age, including but not limited to speech, reading and placement in an inclusive classroom. (Tr. at 1117).

In 8th Grade REDACTED, deficits and lack of progress academically, socially, and emotionally became apparent; the parents had concerns regarding reading and writing. Despite the parents’ private rehabilitative efforts, REDACTED, displayed a significant gap in ability, by all accounts 3-4 years. (Tr. at 1119). He also had social and emotional issues; REDACTED, social anxiety was apparent in his inability to maintain self-control, loss of temper, acting out and not acting in a socially appropriate manner with his peers. (Tr. at 28, 1120).

In December, 2013 the District administered its triennial testing which confirmed the parents’ concerns regarding REDACTED, functioning. The testing indicated a Full Scale IQ of 88, Processing Speed in the 5th%, Working Memory in the 3rd%, Academic Fluency in the 2nd%, Broad Math in the 5th%, Broad Reading in the 4th%, Total Achievement in the 6th%, and Pragmatic language in the 7th%. (Dist. Ex. 1). Additionally, reading fluency was scored in the 1st% and passage compression was scored in the 5th%. (Dist. Ex. 1). REDACTED, social emotional functioning, at-risk scores were noted with respect to hyperactivity and interpersonal relations while clinically significant scores were noted in atypicality and anxiety. (Dist. Ex. 1). Parents assert that the District’s failure to elicit reports for the BASC, from which these levels and abilities were gleaned, from either the staff or the parents, instead relying upon the self-report of this significantly disabled child. (Tr. at 245-246. 587; Dist. Ex. 1).

By 9th Grade and REDACTED, entry into High School an inclusive educational setting was no longer feasible. The CSE recommended REDACTED, self-contained GOAL program. (Tr. at 1121). Parents believed that remediation of REDACTED, reading and writing and social/emotional development deficits was urgent; as REDACTED, deficits became more pronounced and his progress in these deficit areas either stalled or regressed. (Tr. at 1122).

Tenth grade also indicated a lack of progress (Tr. at 1125). REDACTED, report card indicated that he was passing his courses and advancing from grade to grade. Parents believed that this is not the only criteria that should be considered when determining progress (Tr. at 1125). REDACTED, lack of progress and increasing needs in his specific areas of deficit, including his reading, writing, and social/emotional functioning, became troublesome to his parents as their son was scheduled to graduate in two years. (Tr. at 1125-1126). The parents considered information from REDACTED, tutor, their own anecdotal observations, and his scoring in the 1-2 range, significantly below proficiency, on the State ELA and Math assessments. (Tr. at 1128-1129). With respect to the parents’ anecdotal observations, REDACTED, required his homework to be read to him and likely would have been unable to complete it without such assistance. (Tr. at 1130-1131, 1458-1459).

The GOAL class, including the abilities, deficits and needs of the students, rendered it suboptimal for purposes of REDACTED, advancement. The Parent stated that there was one particular student that bullied his son on a near-daily basis. This environment caused his son a significant anxiety, distress and disrupted his academic progress. Despite the fact that “bullying” was reported to the building administration, the situation wasn’t addressed (Tr. at 346, 1132-1133). Additionally, anxiety and distress concomitant to REDACTED, disability as well as the anxiety produced as a result of his frustration and inability to complete work and assignments and keep pace with the class which was detrimental to him (Tr. at 1133).

The English 10 GOAL class did not meet REDACTED, unique special education needs. REDACTED,REDACTED, English Teacher during the 2015-2016 school year, failed to conduct baseline or other testing to determine his reading and writing proficiency. Additionally, she did not assess REDACTED, functioning prior to his removal. (Tr. at 740-741). At the start of the school year, Ms. REDACTED,’s knowledge of REDACTED, was limited to her review of his IEP; she did not review any evaluations or other assessments of REDACTED, (Tr. at 710, 730). REDACTED, was unable to explain why there were no reading goals on REDACTED,’s 2015-2016 IEP. (Tr. at 730). She did not participate in CSE meetings and her input was limited to verbal communications with REDACTED, (Tr. at 709).

REDACTED, stated that the District implemented the Achieve 3000, a computer-based reading program (Tr. at 721). Although REDACTED, possessed global deficits in reading, the main concerns were with his decoding, fluency and comprehension.REDACTED,’s reading was at least 3-4 years below grade-level; despite this, reading instruction was limited to this Achieve 3000 program typically administered once per week with minimal to no direct teacher involvement and with an exclusive focus on comprehension. Classroom instruction was limited to whole group instruction and close reading in a small group when time provided. (Tr. at 722-728).

Prior to the start of 11th Grade, the CSE met to review REDACTED,’s educational program. (Tr. at 1139; see also, Dist. Ex. 4). The District promised that REDACTED, would be admitted in a District-administered Art Program, it didn’t occur due to the scheduling of various GOAL classes. Notwithstanding REDACTED,’s social deficits, needs and the benefits attendant to a specifically designated lunch period; REDACTED, became aware that his REDACTED, would no longer have a lunch in the cafeteria and was assigned Resource Room period for lunch (Tr. at 1137-1140). The CSE recommended that REDACTED, attend a BOCES-administered animation program in REDACTED, for three periods; despite the persistent deficits noted in his evaluations and the absence of any proof of notable progress. The CSE recommended the GOAL self-contained 15-1 Program at the High School, Resource Room, small group counseling one time every other week for 30 minutes, individual counseling one time every other week for 30 minutes, and the services of a 1:1 aide while at REDACTED,REDACTED, did not receive Assistive Technology nor 12-Month Services. Goals were drafted for Study Skills, Writing, Mathematics and Social/ Emotional/ Behavioral. There was no writing or reading programs and or corresponding goals to address his deficits in that area and no speech services to address his social/pragmatic difficulties. (Tr. at 1141-1143; see also, Dist. Ex. 4, 5).

As the 2015-2016 school year began REDACTED, was not happy; he did not assimilate to the BOCES program and the issues attendant to the GOAL program, including his academic struggles and bullying, persisted. (Tr. at 256, 1144-1147). REDACTED,’s reading and writing difficulties continued without appropriate remediation. (Tr. at 1149). By October 2015 REDACTED,’s frustration came to a head; BOCES’ staff noted that he brought a knife to school and force them to take him out of the program. (Tr. at 1151; see also, Dist. Ex. 9). This incident led to a team meeting to review REDACTED’s conduct; a reward system was added to his BIP in an attempt to dissuade further such behaviors. The team discussed REDACTED,’s struggles in writing and added the use of a word processor to his IEP. However, special education services to address REDACTED,’s reading or writing difficulties weren’t addressed in the IEP. The CSE recommended the prophylactic use of technology as an accommodation; however, REDACTED, actively resisted. Notably, special education services to address his social, emotional or behavioral difficulties weren’t addressed in the IEP (Tr. at 1155-1156, 1160-1162).

The parents took their son to see a psychiatrist; rating scales and observation forms were provided to the school psychologist, REDACTED, to distribute to REDACTED’s teachers for feedback. (Tr. at 1165; see also, Dist. Ex. 12). The Resource Room teacher REDACTED, noted that REDACTED, oftenhas difficulty organizing tasks and activities; his Living Environment Teachers noted REDACTED, often doesn’t follow through on instructors and fails to finish schoolwork, often has difficulty organizing tasks and activities, and often fidgets with hands or feet or squirms in seat; REDACTED,’s Math teacher noted REDACTED, often fidgets with hands or feet or squirms in seat; REDACTED,’s US History teacher noted REDACTED,often loses things necessary for tasks or activities, is often easily distracted and often acts as if he was “on the go”; she further noted REDACTED,very often has difficulty organizing tasks and activities, fidgets with hands or feet or squirms in seat, and leaves his seat in the classroom; and REDACTED,’s English teacher noted REDACTED often fidgets with hands or feet or squirms in seat and leaves his seat in the classroom and very often has difficulty sustaining attention, organizing tasks and activities and avoids tasks that require sustained mental effort. (Dist. Ex. 12). REDACTED, copied the documents for her file and returned them to the Parents. The District failed to convene a meeting or communicate with respect to the information gleaned from the surveys. (Tr. at 597, 613).

The parents contemplated a change in REDACTED,’s placement to a program more adept at addressing his disability and particular areas of need. (Tr. at 1165-1166). Specifically, the parents were concerned with REDACTED,’s lack of progress in reading, writing, and his need for an additional year(s) of schooling. REDACTED,’s lack of progress socially/emotionally and the need to remove REDACTED, from the GOAL program (Tr. at 1166-1167, 1458, 1470-1471). In the Fall of 2015, the parents visited the REDACTED, having reviewed, toured and screened for the program, REDACTED, was ultimately accepted. The parents notified the District of their decision to withdraw REDACTED, from REDACTED, Schools in favor of placement at the REDACTED, (Tr. at 1168).

The parents’ maintained that their decision would later motivate the District to convene the CSE to discuss the parents’ concerns. (Tr. at 1169; see also, Dist. Ex. 14). The CSE met on January 28, 2016 to discuss the parent’s concerns. (Tr. at 1169; see also, Dist. Ex. 14).REDACTED, s special education needs and areas of deficit remained consistent and well known; REDACTED’s evaluation was available to the CSE and staff. (Tr. at 247-249, 1170; see also, Dist. Ex. 1). The meeting was convened to address the parents’ concerns and discuss options for retaining REDACTED, in the District’s program. (Tr. at 1171). The CSE agreed to the parents’ request for an evaluation by the REDACTED, Center. REDACTED’s reading deficits were consistent throughout High School; no reading testing, program or goals had been conducted, recommended and/or implemented. The CSE put in place a daily reading program without any evaluations or rationale. REDACTED, was to be removed from the REDACTED, program, and the service of the 1:1 aide was to be discontinued. As per Parent, no specific rationale, academic or otherwise, was provided for the aide’s removal other than to meet the parents’ concerns. Parents maintain that CSE failed to consider and review the State’s criteria for the removal of the aide before removing the service. The CSE disagreed with its removal of REDACTED, (Tr. at 267-268). Despite all changes, REDACTED, continued in the District’s GOAL program. The CSE increased the frequency of counseling support; no rationale was provided and there was no report or other documentation provided to establish that REDACTED,’s needs in this area had changed in any way. Also, without any support or an evaluation regarding the need for the service, speech services were added. Parent maintained that there is no question that REDACTED, had deficits and that he has needs in the area; there is also no dispute that these needs and deficits were long-standing and consistent. A skills-support class was added back to REDACTED,’s IEP after earlier having been removed to accommodate the REDACTED, program. (Tr. at 1171-1179; see also, Dist. Ex. 14, 15, 16).

As per Parent’s counsel, the parents were appreciative of the District’s efforts at the meeting, however, the recommended program did not address REDACTED,’s special education needs. More particularly, “the REDACTED, program and the issues attendant to it, remained unaddressed”. The CSE failed to address REDACTED,’s need for additional schooling beyond 18 or until he reaches the age of 21 and the absence of a lunch period to provide him with an opportunity to socialize and decompress. Finally, REDACTED, had no access to his area of interest, in particular the District’s art program. (Tr. at 1180-1182). As the CSE failed to create appropriate goals to meet REDACTED’s deficits; the parents considered the CSE’s recommendations; however, they moved ahead with their decision to unilaterally place REDACTED, at the REDACTED, effective February 1, 2016. (Tr. at 1184, 1190).

The REDACTED, utilized a research based approach to instruct children with significant disabilities. The program is individualized for each student, applying a therapeutic, collaborative problem solving model. The program allows for on-the-spot interventions and applies a social-thinking curriculum, teaching models of social interaction specific to children with autism. They utilize therapeutic interventions, social thinking, and small class settings allowing for individualized, direct instruction. (Tr. at 759-760, 906, 921, 924-925).

REDACTED, entered REDACTED Program” at REDACTED, in February 2016. REDACTED, reviewed a variety of data from different sources including REDACTED’s IEPs, psychological assessments, progress reports and input from the parents and REDACTED. (Tr. at 762). REDACTED’s program had classes ranging from 4-8 students in a therapeutic environment with a special education teacher and teaching assistant. (Tr. at 765-766). Upon REDACTED’s entry, he was assessed; the staff met regularly to discuss his strengths and weaknesses and how to build tools into his individual program (Tr. at 766, 915-916). The staff conducted a functional behavioral assessment (FBA), developed a behavioral intervention plan (BIP). Strategies were developed to address his anxiety, social deficits, speech and language deficits, perspective taking, and expressive language (Tr. at 768-769). As the staff was trained in the collaborative problem solving approach, the model could and was implemented throughout the course of the day; REDACTED’s needs would also be met through counseling and speech/language therapy. (Tr. at 770-771, 906-907).

REDACTED, began his attendance at the REDACTED, wherein the transition was coordinated by Principal REDACTED, the school counselor REDACTED, and the parents. Interventions were provided as-need on a daily basis and weekly meetings were scheduled to evaluate progress and concerns; REDACTED, and his parents were included (Tr. at 1188-1189). REDACTED, began at REDACTED, as a 10th grader; the transition plan had several goals; first it would provide additional time for REDACTED, to address REDACTED, reading, writing, social and emotional deficits, and minimize his anxiety. Additionally, an extra year(s) of instruction which REDACTED, needed was planned for in order to address REDACTED, special education needs. (Tr. at 762-763, 1190-1193, 1456-1457).

For the 2015-2016 school year, the REDACTED, staff and the parents noted significant progress in only five months. (Tr. at 1197; Dist. Ex. 18). Regarding social/emotional support, the REDACTED, staff was proactive; REDACTED, was doing well with his new peer group; issues and reports of bullying and the accompanying anxiety had been ameliorated. (Tr. at 1198). The REDACTED, staff was very proactive in anticipating and meeting REDACTED, needs; the Parent’s believed that REDACTED, accomplished in 5 months at REDACTED, what could not be accomplished in REDACTED, after two years. Despite the fact that there was instruction on the topic for 8 months; REDACTED, passed the Global History Regents. (Tr. at 1198-1199). REDACTED, had made significant progress in his first semester both socially and academically. (Tr. at 1225-1226; see also, Dist. Ex. 18).

During this time REDACTED, was evaluated by REDACTED, of the REDACTED, Center. (Tr. at 1200; see also, Dist. Ex. 19); the report was reviewed by the CSE at its meeting on June 29, 2016. (Tr. at 1202; see also, Dist. Ex. 21). Notably, the CSE convened without the evaluator REDACTED, or staff from REDACTED, both a general and special education teacher were not present (Tr. at 333, 618, 1202-1203, 1205). Notwithstanding their absence, the report was reviewed by the District’s psychologist. Parent’s counsel asserted that without the benefit of Dr. REDACTED,’s presence, or any communication between REDACTED, and the District; the CSE team was unable to understand, interpret and implement her recommendations. For example, the Chairperson was unaware of the degree to which REDACTED, recommended 1:1 instruction and “minimal transitions”, couldn’t define REDACTED’s use of “support”, and was uncertain as to what “low student-teacher ratio” meant. (Tr. at 445-447). The Psychologist reviewing the report with the CSE noted she didn’t understand what REDACTED, meant by intensive special education support, low student-teacher ratio, or 1:1 instruction as needed. In her own words, she couldn’t imagine what REDACTED, meant by “modified or individualized curriculum” or “classroom designed to minimize sensory and environmental distractors”. (Tr. at 623-624). Despite this and the staff absences noted, the CSE made changes to REDACTED’s IEP in anticipation of the upcoming 2016-2017 school year.

REDACTED, who did not have the opportunity to present to the CSE, had the opportunity during the hearing to discuss her recommendations. (Tr. at 1595). She recommended a program to provide a combination of supports to REDACTED, throughout the course of the school day; he needed a program capable of providing a high level or “intense” social, emotional and behavioral supports throughout the day, including instructional and non-instructional time, as well as in structured and non-structured environments; it was for this very reason that REDACTED, recommended a low student-teacher ratio (Tr. at 1574-1576). [REDACTED] required a classroom that operated at a very slow pace to manage not only his deficits in working memory and processing speed, but the high frequency of off-task, work-interfering behaviors. (Tr. at 1576). REDACTED, recommended 1:1 instruction as REDACTED, still required a lot of behavioral management; she also recommended minimal transitions throughout the day to minimize his distress triggers. (Tr. at 1577, 1580-1581). If transitions could be minimized, REDACTED, would be more available for learning. (Tr. at 1582). REDACTED, recommended a modified and individualized curriculum to meet REDACTED’s learning style, and to address his deficits in working memory and processing speed. (Tr. at 1582).

REDACTED, addressed her concerns with respect to REDACTED’s adaptive skills and autism-typical behaviors. She recommended a curriculum embedded with life skills, a staff trained to work with students with autism spectrum disorder, and a learning environment that minimized sensory and environmental distractors. (Tr. at 1582-1585). To the extent REDACTED, had above average ratings in the taste, smell and touch response domain consistent with sensory aversion, REDACTED, recommended collecting data on REDACTED’s sensory aversions. (Tr. at 1586-1588). REDACTED, noted REDACTED’s communications skills were commensurate with those of a 3 year-old child and that his functional and adaptive skills were substantially below expected levels and that he required services and skill-building in this area. (Tr. at 1591-1593).

The CSE recommended changes in the absence of the individuals noted above, including REDACTED,’s reclassification from Multiple Disabilities to Autism. Curiously, REDACTED’s diagnosis of Autism was readily known by the District for several years at that point. (Tr. at 374, 406, 1207-1208, see also, Dist. Ex. 21, 22). The CSE thereafter made the following, additional changes:

“Academic Achievement, Functional Performance and Learning Characteristics” section updated, (updated content in italicized text):

Overall Academic Performance:

…He has become more compromising and flexible as the year has progressed removed; content regarding difficulty in Reading and Writing removed.

Students Strengths, Preferences, Interests…:

REDACTED, raises his hand in class and overall acts appropriate as a student. He is very inquisitive. REDACTED, has been improving his ability to compromise and be flexible” removed.

Academic, Developmental and Functional Needs of the Student…:

REDACTED, needs to improve his reading fluency. REDACTED, needs to improve his ability [sic] draw conclusions and make inferences while reading. REDACTED, needs to improve his ability to generate ideas during the writing process…removed.

“Social Development”

The Degree (Extent) and Quality of the Student's Relationships with Peers and Adults…

…and will sometimes as a result say inappropriate things, removed;

REDACTED, has improved his ability to verbalize his feelings and problem solve, removed;

REDACTED has improved with verbalizing his feelings and problem solving social emotional difficulties, removed.

Measurable Annual Goals

Study Skills # 1, 2 removed; new goals #1, 2 added

Reading #3, 4, 5 removed; new goals #3, 4 added

Writing #6, 7, 8 removed; new goals #5, 6 added

Mathematics #9 removed

Social/Emotional/Behavioral # 10, 11 removed.

Recommended Special Education Programs and Services

Special Class (Support Skills Class): 15:1, 1 x Daily removed

Counseling/Social Skills: Small Group, changed from 1x weekly to 1x bi-weekly

Speech/Language Therapy: Small Group 1x weekly removed

Aide 1:1, changed from 6x Daily (all academic classes at the high school) to 3x Daily (Math, SS, and ENG)

Aide 1:1 for “REDACTED, Tech” added

Coordinated Set of Transition Activities

Related Services: …He will receive speech/language therapy to address communication skills and pragmatic language/Speech Language Therapist, removed.

Development of Employment and Other Post-School Adult Living Objectives: Reference to student’s attendance at Levittown [REDACTED] Tech Computer Animation program restored (The student will attend the Levittown [REDACTED] Tech Computer Animation Program in the mornings.)

Participation with Students without Disabilities

The student will not participate in regular education in the following areas:…Support Skills and a period of individualized reading instructionremoved.

On July 26, 2016 the CSE reconvened to discuss REDACTED’s 2016-2017 educational program; REDACTED, was not in attendance (Tr. at 1216-1217; see also, Dist. Ex. 26); however, the staff from REDACTED, was present and reported on REDACTED’s progress. (Tr. at 1217; Dist. Ex. 15, 18, 24). The REDACTED, staff noted that while REDACTED, continued to struggle in his deficit areas, that after five months he has transitioned nicely, displayed receptiveness to staff support, independently seeks out the counselor, and improved in his ability to identify his emotions. (Dist. Ex. 15, 24). Academically, REDACTED, made progress in each area of disability, including reading, writing and math, meeting ten of the eleven goals set forth in his IEP. (Dist. Ex. 15, 18, 24). The parents noted that with respect to REDACTED,’s social/emotional functioning, that when he came home from school, he was no longer anxious and the frequency of removals from the classroom as a result of anxiety as well as the time spent at home addressing it had drastically decreased. (Tr. at 1223). Academically, the parents noticed progress in both reading and writing. (Tr. at 1227). Notwithstanding REDACTED's recommendations, REDACTED’s failure to make progress in the REDACTED, GOAL program over the preceding 2 years, and despite REDACTED’s progress at REDACTED, the CSE again recommended the REDACTED, program for the 2016-2017 school year. (Tr. at 1218-1221). The following changes would be made to REDACTED’s June 29, 2016 IEP for the 2016-2017 school year:

Measurable Annual Goals

Study Skills # 1, 2 removed; new goals #1, 2, 3, 4 added

Reading #3, 4 removed; new goals #5, 6, 7 added

Writing #5, renumbered #8, revised: Given class assignments, REDACTED, will use the conventions of standard English grammar and usage when writing and speaking. Criteria/Measure changed from, 80% success over 10 months to 65% success over 5 weeks; Schedule (When Progress will be Measured) changed from By end of each marking period to Quarterly.

Writing #6, renumbered #9, Criteria/Measure changed from, 80% success over 10 months to 55% success over 10 weeks; Schedule (When Progress will be Measured) changed from By end of each marking period to Quarterly.

Writing #10 added

Mathematics #11, 12, 13 added

Speech/Language #14, 15, 16added

Social/Emotional/Behavioral # 17, 18, 19 added

Recommended Special Education Programs and Services

Special Class (Support Skills Class): 15:1, 1 x Daily added

Counseling/Social Skills: Small Group, changed from 1x bi-weekly to 1x weekly

Counseling: Individual, changed from 1x bi-weekly to 2x weekly

Parent Training, changed from 1x weekly to 1x monthly

Speech/Language Therapy: Small Group 1x weeklyadded

Supplementary Aids and Services, etc.:

1:1 Aide for REDACTED, Tech program removed

Use of Graphic Organizer added

Use of a calculator added

Testing Accommodations:

Use of a calculator - To be used on quizzes, tests, and state assessments for mathematical calculations

Coordinated Set of Transition Activities,

Added content in italicized text:

“Community Experiences,”… REDACTED, will be encouraged to continue participation with the school art club and yearbook club.

“Development of Employment, etc.,” … REDACTED, will meet with a counselor to discuss electives related to career interests. … REDACTED, will have the opportunity to attend the REDACTED, Tech program. REDACTED, will be encouraged to participate in CSE meetings to articulate post-secondary goals. REDACTED, will participate in career interest inventories.

At the conclusion of the meeting, the parents expressed their disagreement with the CSE’s recommendation and their decision to continue REDACTED, at REDACTED, for the 2016-2017 school year. (Tr. at 1229).

As per the Parent, the 2016-2017 school year at REDACTED, confirmed progress for REDACTED, (Tr. at 1229; Dist. Ex. 15; Par. Ex. A). REDACTED, was doing well socially, making friends, and progressing academically. REDACTED, recalled spending less and less time with REDACTED, on his homework as time went on; REDACTED, was growing in his ability to work independently and his need for assistance was decreasing. (Tr. at 1230, 1234; see also, Par. Ex. A). As the 2016-2017 school year came to a close the parents requested that REDACTED, formulate an appropriate educational program for REDACTED, for the 2017-2018 school year. On June 15, 2017 the CSE met to review REDACTED’s progress at REDACTED, and formulate a program. (Tr. at 1235; see also, Dist. Ex. 44). The REDACTED, staff again noted significant progress in each area of deficit. (Dist. Ex. 39, 40, 41, 42; Par. Ex. A). In addition to the input from REDACTED, staff, the parents noted that REDACTED, was hand-selected by REDACTED, administration to design the yearbook cover for the then-outgoing graduating class, which he eagerly did (Tr. at 1236). Every Friday afternoon REDACTED, offered multiple clubs and activities for the students; for REDACTED’s participated in+ the Yearbook Club, the Sewing Club, and the Art Club. (Tr. at 1239). REDACTED, enrolled and attended an Art elective course each semester. (Tr. at 1239). In addition to their non-traditional programming and electives. REDACTED, was in a work study program once a week; he spent some of his time working off-campus at a bowling alley. The students, escorted by REDACTED, staff, would board the LIRR and take it one stop to the bowling alley where they would disembark and report for work at the bowling alley for several hours in various capacities; they would then eat lunch together, re-board the train and return to REDACTED, and continue with the school day. (Tr. at 1240-1241). in order to ensure that their students would transition effectively to either college or work following their graduation implemented several plans. To the parents’ recollection, REDACTED, did not offer a similar opportunity for work-study or address REDACTED’s post-graduation transition effectively or appropriately. (Tr. at 1242).

Notwithstanding REDACTED's recommendations, REDACTED’s failure to make progress in the REDACTED, GOAL program over the preceding 2 years, and despite REDACTED’s progress at REDACTED, for the past 18 months, the CSE again recommended the REDACTED, GOAL program for the 2017-2018 school year. (Tr. at 1237). The District would also make the following changes to REDACTED’s IEP for the 2017-2018 school year:

Measurable Annual Goals

Study Skills # 1, 2,3, 4 removed; new goals #1, 2 added

Reading #5, 6, 7 removed; new goals #3, 4, 5, 6added

Writing # 8, 9, 10 removed; new goals #7, 8 added

Math # 11,removed

Speech/Language # 14, 15, 16 removed; new goals #11 added

Social/Emo/Behav. # 17 removed; new goals #12 and 14 added

Recommended Special Education Programs and Services

Supplementary Aides and Services: Pre-teaching of Material (In the classroom) added

(Dist. Ex. 34, 44).

The parents noted their disagreement with the CSE’s recommendation and their decision to continue REDACTED, at REDACTED, for the 2017-2018 school year. (Tr. at 1237-1238). REDACTED, continued at REDACTED, for the 2017-2018 school year andaccording to the parents it was a very good year; the REDACTED, staff agreed and noted “tremendous growth”. (Tr. at 1242; Dist. Ex. 15, 48, 49, 50, 51; Par. Ex. B, C). REDACTED, enrolled in senior electives, or life-skills courses that combined several aspects of different disciplines. (Tr. at 1243). This included courses that combined science, math and engineering and a course that included personal finance, bank accounts, and checkbooks, all with an eye toward transition and life skills. (Tr. at 1244). At home, REDACTED, continued to make progress (Tr. at 1245; see also, Par. Ex. B, C). At the end of the 2017-2018 school year REDACTED, had earned a NYS CDOS Certificate and a NYS Regents Diploma; he passed a Regents Exams in Global Studies, U.S. History, and English (Tr. at 1249, 1553-1554.

According to Principal REDACTED, she watched REDACTED, grow during his time at REDACTED.REDACTED, went from being obsessive, perseverative, and shut down to being able to express himself and discuss topics outside his areas of interest; he became more accepting and understanding. (Tr. at 772-775). REDACTED, made academic gains, passed three Regents Exams and earned a Regent Diploma. REDACTED, became more independent and able to self-advocate; he was able to identify triggers and developed coping strategies. This could be seen through his participation in REDACTED’s work-study program where he earned enough credits to be awarded the CDOS credential. (Tr. at 777-779).

REDACTED, was REDACTED’s counselor during his final year at REDACTED, (Tr. at 923-924). She provided individual and group counseling, collaborative problem solving, and talk therapy, as well as peer mediation and push-in services in the classroom, electives and during lunch. (Tr. at 924-926). She described REDACTED, as a student who transitioned from an anxious, quiet and non-social student to one who was willing work on his social deficits and anxiety and showed improvement and growth in being able to problem solve with his peers and take others perspectives. REDACTED, noted REDACTED, had succeeded in developing more independence and coping strategies for a successful post-High School career. (Tr. at 930-931).

REDACTED, taught REDACTED, history and several electives. (Tr. at 992-995); his instruction was infused with the collaborative problem solving approach; students were allowed to develop their strengths in a small class, flexible learning environment where they received direct and individualized support. (Tr. at 997-998). Students received the NYS curriculum, modified as their deficits required, and received whole class, group and individual instruction. (Tr. at 1021-1023, 1027-1028). When REDACTED, struggled, they would take a break, go for a brief walk, talk through the issue and per their CPS model, develop a mutually agreeable resolution to the problem. (Tr. at 1005, 1008, 1010, 1015). REDACTED, described how the staff would meet every morning and sometimes in the afternoon as the situation warranted, to discuss the students. (Tr. at 1006-1007).

By the time of REDACTED’s graduation, REDACTED described him as a strong writer and storyteller, the best in his class. REDACTED, was more responsible, less likely to get angry or upset with academic demands and was compliant; REDACTED, took ownership of his assignments. (Tr. at 1015-1017). REDACTED, progressed and became a student who was conformable with his peers, tolerant, and accepting of others’ perspectives; he was flexible, more social and developed friendships. Further, he had become more expressive, able to communicate his frustration, and actively participated in class, answering questions and voicing his opinion. (Tr. at 1017, 1030-1039, 1106, 1109).

REDACTED,REDACTED’s High School English teacher described a very therapeutic environment. (Tr. at 1364-65, 1367-69, 1370). REDACTED, stated that when REDACTED, first came to her in 2016 as a student who struggled in reading and writing, operating significant below grade-level; the topics produced great anxiety and refusal. (Tr. at 1378, 1394). He was quiet, anxious, frustrated and unwilling to participate in the group. (Tr. at 1375). Over time this would change, REDACTED, described a highly individualized program, including a modified and individualized NYS curriculum, as well as individualized instructional materials (Tr. at 1378-1381). They worked through the NYS curriculum at a slower pace, engaged in guided, whole class and small group reading exercises as well as I:1 supported reading instruction; they utilized pre- and re-teaching, guided questions, visual aids, graphic organizers, reminders and teacher made assessments to name but a few of the strategies implemented in the classroom. (Tr. at 1382-1384, 1392). By his graduation, REDACTED, had passed the NYS English Regents; REDACTED, described REDACTED, as able to self-regulate and use his coping strategies; REDACTED, was able to self-advocate, take ownership of his feelings and stay in class more. (Tr. at 1385, 1388, 1396). REDACTED, noted REDACTED, was more active in class, leading class discussions, more active socially, and making friends; academically, REDACTED, was reading and writing independently and more accepting of the use of technology to meet his needs; in writing in particular, she noted REDACTED, was less apprehensive, less anxious and overall, saw improvement. (Tr. at 1397-1400).

The Parents stated that success at REDACTED, came with considerable financial cost. (Tr. at 1250; see also, Par. Ex. G, H, I). However, REDACTED, had made considerable progress in his areas of deficit, reading writing and social/emotionally, and was prepared for his transition to post-high school life. (Tr. at 1251, 1468-1469). REDACTED, attends REDACTED Community College where REDACTED, is majoring in Art, passing all of his classes, save one, without the benefit of accommodations or modifications except extended time, enjoying the experience and doing well. (Tr. at 1252-1253).

THE DISTRICT’S CASE

As per District’s counsel, REDACTED, attended REDACTED, during Preschool; he was classified as a Preschooler with a Disability through the Committee on Preschool Special Education ("CPSE"). Between the ages of four and five, REDACTED, displayed communicational difficulties using gestures and eye contact. (SD-19). [REDACTED] was placed into an integrated classroom for second grade; he was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and a Pervasive Developmental Disorder (“PDD”). (SD-1). REDACTED, continued to receive speech therapy and occupational therapy services, in addition to a weekly Social Skills group. (SD-1) In third grade, REDACTED, remained in an integrated classroom; his occupational therapy was reduced to one time per week. (SD-1) REDACTED's program remained the same in fourth and fifth grade.

When REDACTED, transitioned to middle school, he was placed in a self-contained class for all academic subjects with a Support Skills class. (SD-1); he continued to receive biweekly speech services and a Language Other than English (“LOTE”) waiver was granted. In February of REDACTED's sixth grade year, he was placed in an integrated Social Studies class, and remained in self-contained classes for all his other subjects with reading support on alternating days. These services continued for REDACTED, through seventh grade, and weekly counseling/social skills and weekly speech services were added to his IEP. (SD-1) In eighth grade, REDACTED, transitioned into integrated classes for Science, English, and Social Studies, while continuing in a self-contained class for Math. At this time, REDACTED, received counseling/social skills and speech services in a group setting. REDACTED, displayed learning, behavioral, and social/emotional difficulties throughout middle school; this was memorialized in his annual review between eighth and ninth grade. (SD- 1, 19)

REDACTED's transition to high school offered placement in self-contained classes for Social Studies, Math, and English; he was to remain in an integrated Science class. At this time, the District arranged for REDACTED, to receive individual counseling, in addition to weekly counseling/social skills and weekly speech services.

REDACTED, transitioned into REDACTED High School during the 2013-2014 school year for ninth grade. (SD-2) He was placed in Self Contained Goal Oriented Academic Learning ("GOAL") classes for core subjects with no more than a 15:1 student to teacher ratio, which assigned individualized work based on each student's specific needs; teachers in GOAL classes provided differentiated in-class assignments and homework to each student and utilized a multisensory approach to maximize student learning and understanding. (Tr. 30-31) A recommendation for a "FBA" and "BIP" was made in order to address his rigidity and inflexibility. (SD-1) On December 16, 2013, REDACTED received a triennial psychological reevaluation by the school's psychologist, REDACTED,. (SD-1) This evaluation utilized the Wechsler Intelligence Scale for Children - 4^th Edition (WISC-IV), Woodcock-Johnson Tests of Achievement - 3^rd Edition (WJ-III), and Behavior Assessment System for Children - 2^nd Edition (BASC-2) examinations, a Multi-dimensional Sentence Completion, as considered Teacher Reports, Record Review, and a Social History Update. During the evaluation, REDACTED, was assessed to have a low overall working memory and processing speed, which ranked in the 3^rd and 5^th percentiles, respectively. REDACTED, also displayed low-average academic processing skills, scoring in the 5^th percentile; and it was noted that REDACTED, was very hyperactive, atypical, and anxious. While REDACTED's writing sample skills were average, he displayed very low writing fluency, scoring in the 1^st percentile. REDACTED's relative strengths were his verbal skills, perceptual reasoning, abstract reasoning, and writing skills. REDACTED, also demonstrated average verbal comprehension, self-esteem, and social stress. REDACTED's BASC-2 scores indicated that he had positive feelings towards the District's program. (SD-1; Tr. 470-472)

REDACTED, noted that REDACTED's average locus of control indicated that REDACTED, was working towards goals and felt that he had control over his own success. (Tr. 471) REDACTED, recommended that REDACTED, receive extra time to process information, be reminded to move on to the next topic when falling behind, receive pre-teaching of relevant questions and information ahead of time so that he could more readily keep up in class, and be encouraged to contemplate his post-secondary plans. On March 21, 2014, REDACTED, developed a BIP to help REDACTED, utilize these reactive intervention methods, and monitor his progress and program accordingly. (SD-8)

While REDACTED, had academic and social/emotional challenges in ninth grade, his report card indicated that he achieved final grades that ranged from 72 to 89; REDACTED, had good attendance and showed progress in most classes, while struggling in Social Studies and Science. (SD-2; Tr. 29) In tenth grade, REDACTED, improved most of his grades, but still struggled in Social Studies where he received a final grade of 65 and scored a 44 on the Regents exam. (SD-2; Tr. 32)

REDACTED, continued to excel in classes of interest to him, and achieved a 96 and a 91 in his Animation and Sculpture classes, respectively; of note, these non-core classes that REDACTED, found success in were general education classes. (SD-2; Tr. 33)

The District’s counsel maintained that the Parents did not challenge REDACTED's IEPs for the aforementioned academic years, and/or the IEP developed by the CSE on July 21, 2015 for his Grade 11, 2015-2016 school year. On July 21, 2015, the CSE convened for a parent-requested meeting to revise his annual review IEP held for the 2015-2016 school year. The District asserts that the CSE utilized the Parents' input along with REDACTED's various academic and behavioral evaluations, test results, in-class progress, post-secondary goals, and transition needs to review and further develop an IEP for the 2015-2016 school year. (SD-4) The IEP included REDACTED's placement in the 15:1 core subject GOAL classes, of which REDACTED's English class utilized the scientific-based Achieve 3000 reading program. (SD-4; Tr. 47) REDACTED also continued to receive individual and group counseling and had a BIP and Behavior Intervention Consultation ("BIC") provided daily as necessary. (SD-4).

As per REDACTED, the District recommended multiple changes tailored to REDACTED's needs and interests. Due to REDACTED's struggles with time management and pacing, the IEP provided the following testing accommodations: a flexible testing setting, simplified or explained directions as needed, 2.0 times extended time, the use of break periods when needed, reading aloud text and questions to REDACTED, during tests, and the use of a word processor for lengthy essays. Additionally, the District asserts that in order to prepare REDACTED for his post-secondary life and desire to work as both an animator for Disney and a video game designer, the District gave REDACTED the option to attend the BOCES REDACTED, REDACTED Tech Computer Animation Program. The District recommended that REDACTED, have a 1:1 aid support him in his Math, Social Studies, and English classes and accompany him to the REDACTED program. (SD-5; Tr. 40-41) Furthermore, the committee gave REDACTED a resource room with a 5:1 student to teacher ratio to further support REDACTED. (SD-5; Tr. 39) The Parents agreed to all of the CSE recommendations, including the BOCES REDACTED, program, which REDACTED, specifically requested. (SD-5; Tr. 41)

REDACTED, began 11^th grade in REDACTED, High School on September 16, 2015, the District updated [REDACTED]'s BIP to implement a rewards system that would incentivize him to work towards improving his behavior. (SD-8) These behavioral progress checks noted that from October 2015 through January 2016, REDACTED, made progress and mostly demonstrated appropriate behavior in his classes. (SD-11) Additionally, REDACTED’s need to take breaks from class or go for walks decreased over time and he demonstrated progress pushing past his frustrations and getting work done. (Tr. 499) REDACTED excelled in the BOCES REDACTED, program, as he independently completed high-quality work in a general education. (Tr. 483, 485-486, 500) REDACTED, demonstrated significant social progress; he was often with peers from his classes and had developed a close relationship with a friend. (Tr. 502) REDACTED, successfully participated in the dual REDACTED, High School/BOCES REDACTED, Vocational program through January 28, 2016. (SD-5; Tr. 41)

On or about January 15, 2016, the Parents submitted written notification to the District that they would be unilaterally placing REDACTED, at REDACTED, at the District expense, commencing on February 1, 2016. In response, the District held a CSE meeting on January 28, 2016, to address the Parents' concerns and attempt to generate a resolution. (SD-14) At the time, REDACTED, was earning grades that ranged from 72 to 83 in his core classes. (SD-2). He was also actively participating in his classes and excelling in the BOCES REDACTED, program in the areas of self-advocacy and project completion. (SD-15) Moreover, it was noted that REDACTED, had been making progress in complying with his BIP and earning rewards; he was benefiting from group counseling and individual counseling services. (SD-15) The CSE considered REDACTED's current functioning across all academic, social, physical and management areas, as well as the Parents' concerns, and amended the IEP. (SD-14; Tr. 48) Specifically, the new IEP sought to remove the BOCES REDACTED, vocational program per the Parents’ request and increase the focus on academic skill building in the areas of reading, writing, and math.(Tr. 49; 1175-1176, 1275-1277) The CSE recommended increasing REDACTED's aide support in REDACTED, High School for all of his academic classes, since he would no longer be attending the BOCES program. (SD-14)

District’s counsel stated that the amended IEP increased REDACTED's academic support as follows: a special class with a 15:1 ratio for support skills was added wherein REDACTED could build on his reading, writing, and math skills. In reading, writing, and math, goals were further developed; additional reading instruction would be provided daily, in addition to small group reading instruction with a certified Wilson reading instructor to address REDACTED 's decoding and comprehension skills. (SD-14; Tr. 137; 1179) To address REDACTED 's behavioral needs and difficulties with social skills and pragmatic language, the amended IEP sought to add speech and language services once weekly, and to also increase group counseling services from biweekly to once weekly. (SD-14) Furthermore, to address the Parents' concerns regarding REDACTED 's challenging behavior at home, the amended IEP recommended parent-training services once weekly at home, but the Parents declined this service. (SD- 14-15)

The District agreed to pay for an Independent Educational Evaluation (“IEE”) at the Parents’ request; a neuropsychological at the REDACTED Center.(SD-15, 58; Tr. 79-81) The CSE noted that REDACTED made significant progress compromising on tasks, being more flexible, finishing work quicker, developing relationships, verbalizing his feelings more readily, acting completely appropriately with group members, and was also working individually with an academic center staff member to specifically prepare for the Regents. (SD-15) REDACTED had expressed recent sadness about leaving REDACTED High School and his friends, as well as fear of what another school would be like. (SD-15; Tr. 44, 520). At the conclusion of the meeting,REDACTED and the Parents' legal counsel advised the District that they were rejecting the recommended IEP and would be unilaterally placing [REDACTED] in [REDACTED] as a tenth grade student, instead of continuing as an eleventh grade student in [REDACTED] High School, for the remainder of the 2015-2016 school year. (SD-15; Tr. 66-68). As per the District, REDACTED indicated that he was very happy with the amended IEP that the District created, and that the reason he was transferring REDACTED to REDACTED was not because of an issue with the District, but rather because it was just a decision that the Parents wanted to make. (Tr. 517-518, 526). The District maintained that the Parents did not report or raise any issue of bullying to the CSE nor was the CSE aware of any such allegations or report.

From February 2016 through March 2016, REDACTED received various assessments at the REDACTED Center for his neuropsychological evaluation at District expense. (SD-19, 58, 1361) The evaluation described REDACTED 's rigidity and learning difficulties in a manner that the District was familiar with, noting that he had pacing difficulties due to his idiosyncratic work style. (SD-19; Tr. 537). REDACTED opined that the report described REDACTED 's behavioral nature during his initial time at REDACTED in a manner that was much more severe than he displayed during his eleventh grade year in REDACTED High School. Whereas REDACTED had never been significantly defiant or aggressive in the District, the REDACTED evaluation indicated that per REDACTED staff REDACTED showed “clinically significant symptoms of emotional distress, hyperactivity, impulsivity, and impulsive behaviors" as well as " significant levels of defiant and aggressive behaviors which are not similarly observed within the home setting." (SD-19; Tr. 413, 538) Moreover, while REDACTED 's behavior in eleventh grade at the District showed progress in self-advocacy, the REDACTED report assessed his self-advocacy and self-care abilities, as well as his ability to handle basic social interactions, as "grossly impaired." (SD-19; Tr. 410-411, 682, 691-692, 713). The report ruled out ADHD and confirmed that REDACTED had autism spectrum disorder, as well as a learning disorder with impairment in reading, written expression, and mathematics. (SD-19) REDACTED remained in REDACTED throughout the 2015-2016 school year as a tenth grade student. He repeated the English 10, Geometry, Earth Science, and Global II classes that he had already taken at REDACTED High School and received overall grades ranging from 80 to 90 on his report card. (SD-18; Tr. 528-529) In June 2016, REDACTED failed the Earth Science Regents with a 57 but passed the Global History Regents with a 69. (SD-18).

The District held an annual review meeting on June 29, 2016, which continued on July 28, 2016, to develop an IEP for REDACTED for the 2016-2017 school year. (SD- 21, 26) The reason that the July meeting was necessary was because REDACTED was not present at the initial June meeting, and the CSE needed REDACTED’ progress report to update REDACTED’s IEP. (Tr. 390, 395) The CSE considered the neuropsychological evaluation from the REDACTED Center and, with the Parents' agreement, changed REDACTED 's classification from Multiply Disabled to Autism. (SD- 21, 22) The CSE also considered REDACTED 's academic and behavioral functioning, feedback from [REDACTED] staff, and the Parents' input, and recommended that REDACTED participate in a similar academic placement as his previous IEP recommended. Specifically, that REDACTED continue in his core special classes, participate in a special class for support skills, attend resource room, and receive specialized reading instruction. (SD- 21, 26) Moreover, the CSE recommended increasing counseling and social skills from biweekly to once weekly and increasing individual counseling to once weekly; the CSE also recommended that REDACTED receive speech/language therapy once weekly and that the Parents agree to parent training once monthly. (SD- 21, 26) Furthermore, the CSE recommended an updated speech/language evaluation, Each of REDACTED 's areas of functioning, goals, and Coordinated Set of Transition Activities were reviewed and updated. The CSE continued to recommend a BIP and BIC for REDACTED and for a 1:1 aide to support him in Math, Social Studies, and English. (SD- 21, 26)

On September 13, 2016, REDACTED received an updated speech/language evaluation. The evaluator administered the CELF 5 Metalinguistic and CELF 5 Reading and Writing Supplement tests. (SD-28) REDACTED 's results showed that he was able to make logical inferences and use specific words in a conversation to match a character in a scene. However, REDACTED struggled to interpret multiple meanings of words and statements, scoring in the 2^nd percentile. Additionally, REDACTED displayed a deficiency in understanding figurative language; he had difficulty with the literal meaning of expressions and scored in the 0.2^nd percentile. (SD-28) Moreover, REDACTED 's poor reading comprehension score stemmed from a difficulty to recall details, which indicated deficits in his memory and comprehension. His deficient structured writing score also indicated a difficulty with proper grammar, sentence structure, and semantics. Ultimately, the evaluation stated that REDACTED appears to benefit from visual cues and repetitions.

On September 28, 2016, the District convened a CSE meeting to review REDACTED 's completed speech/language evaluation and update his IEP appropriately. (SD-30) The CSE recommended that REDACTED receive speech/language therapy once a week for thirty minutes in a small group. On or about January 24, 2017, the IEP was amended through an “Agreement No Meeting” process in order to changing the re-evaluation date from December 16, 2016 to February 11, 2019 on the basis of the REDACTED neuropsychological evaluation dated February 11, 2016. (SD- 33, 34) Following this meeting, although parent training was on the IEP, the Parents were non-responsive to numerous phone calls from the home services organization. (SD-34; Tr. 122-123) As a result, on April 3, 2017, the District sent a Prior Written Notice to the Parents indicating that REDACTED 's IEP would continue but that home services be removed. (SD-36)

On June 15, 2017, the CSE convened for an annual review meeting for REDACTED for the 2017-2018 school year, for a fifth year of high school. The CSE reviewed his current levels of performance across all areas, updated his functioning levels and needs, and developed appropriate goals to address such needs. (SD-44) The review included input from REDACTED and REDACTED representatives; the CSE continued to recommend that REDACTED participate in REDACTED High School's special class program for his core subjects in a 15:1 ratio, a special class for support skills in a 15:1 ratio, resource room in a 5:1 ratio, and receive specialized reading instruction. The CSE continued to recommend that REDACTED attend small group counseling/social skills once weekly, individual counseling twice weekly, speech/language therapy once weekly, and parent training once monthly. The District provided for REDACTED to have a BIP and a 1:1 aide to support him in Math, Social Studies, and English. The CSE updated REDACTED 's Coordinated Set of Transition Activities and discussed his post-secondary goals and graduation status. Furthermore, the CSE recommended that REDACTED complete an interest and career inventory, a transition assessment, and participate in vocational work to obtain work-readiness skills for future employment. REDACTED reported that REDACTED failed the Earth Science and Algebra Regents and took a general Chemistry class, which was not attached to Regent’s credit. As a result, the District acknowledged that REDACTED might not achieve a Regents diploma as was originally planned for by the CSE and the Parents. Consequently, the CSE again discussed the option of REDACTED earning a NYS Career Developmental and Occupational Studies ("CDOS") Credential in addition to a Regents or a local diploma, and further advised that REDACTED post-secondary through ACCESS VR and OMRDD would support his needs. (SD- 44, 15)

On March 26, 2018, the CSE convened for an annual review for REDACTED for the 2018-2019 school year, which would be REDACTED 's sixth year of high school. (SD-61) At this meeting, the District was fully prepared to develop an IEP suited for REDACTED 's academic and behavioral needs for the 2018-2019 school year, as he had not earned a local or Regent’s diploma and was under 21 years of age. (SD-62) However, at the meeting, and unbeknownst to the District, REDACTED advised the CSE that REDACTED would be graduating from REDACTED in June 2018, with a local diploma; the Parent disclosed that REDACTED would be entering Nassau Community College in September 2018. (SD-62) Consequently, the District agreed to hold an exit summary meeting on May 21, 2018. The District held an exit summary meeting for REDACTED which documented his academic achievement, functional performance, and learning characteristics. (SD-57)

In June 2018, REDACTED retook the Algebra Regents that he had taken as a District student in June 2015, in which he had earned a 57, to try and improve his score. As per REDACTED, despite REDACTED having an additional full year of an Algebra 1 Regents Prep class at REDACTED, he scored a 52. (P B, C; Tr. 828) REDACTED retook the Earth Science Regents that he had scored a 57 on in June 2016, and his score declined. REDACTED 's Transcript from REDACTED indicates that he received an 87 in his repeated Earth Science class during the 2015-2016 school year but achieved a 44 on the Earth Science Regents; 13 points lower than he did in 2016. (P C; Tr. 829) As a result, both his Algebra and Earth Science scores declined significantly as a student at REDACTED.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006).A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347_;The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seq. (“IDEA”).“Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs… [and] to ensure that the rights of children with disabilities and parents of such children are protected.’”M.H. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)).The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.”Endrew F. v. Douglas Cty. Sch. Dist., __ U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10.A focus on the particular child is at the core of the IDEA.Endrew F., 137 S. Ct. at 999.To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “specifically designed’ to meet a child’s ‘unique needs’” and is reasonably calculated to enable the child to receive educational benefits.Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

The legal standard applicable to request for payment for educational services such as in this case is well established.A Department of Education may be required to pay for educational services obtained for a child by the child’s parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2. the services selected by the parents were appropriate and 3, equitable considerations support the parent’s claims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Foru v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Center, School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] “reimbursement merely requires a district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.”

Under the second criteria of the legal standard, the child’s parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act”, (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child’s special educational needs (Application of a Child with a Disability, Appeal No. 94-29).The test for the parent’s private placement is that it is appropriate not that it is perfect (M.S. v Bd. Of Educ, 231 F 3d 96, 105 [2d Cit. 2000] cert. denied 532 U.S. 942 2001.The private school need not employ certified special education teachers, nor have its own IEP for the student. While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002].

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’”20 U.S.C. §1415(f)(3)(C)(ii); A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”)

In this jurisdiction, the standard by which the appropriateness of a private placement is measured was articulated by the Second Circuit in the case of Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364–65 (2d Cir. 2006). In Frank G., the Court recognized that parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate (citingM.S., 231 F.3d at 104). The Court stated that a request for reimbursement will not be barred even though the private school the parents choose does not meet the IDEA definition of a FAPE (see 20 U.S.C. § 1401(9) or state education requirements (see Carter, 510 U.S. at 14).

No one factor is necessarily dispositive in determining whether parents' unilateral placement is appropriate and “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M. S., 231 F.3d at 105. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Rowley, 458 U.S. at 188–89 (internal quotation marks omitted).

More recently, in T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 877-78 (2d Cir. 2016), the Second Circuit reaffirmed that parents “bear a lower burden” of demonstrating the appropriateness of a private placement than school districts do in establishing the provision of a FAPE. Indeed, parents are not barred from reimbursement simply because the private school they choose does not meet the IDEA definition of a FAPE. Once again, parents are only required to demonstrate that the private placement was appropriate, i.e., reasonably calculated to provide educational benefit, as evidenced by the progress made at the private school. The private school does not have to provide every related service on site, nor hire certified special education teachers, or even provide an IEP for the disabled student. Additionally, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d at 105 (citingWarren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999). In sum, the test for the private placement “is that it is appropriate, and not that it is perfect.” C.L., 744 F.3d at 837 (quotation marks omitted); see alsoI.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016).

The final criterion of an award of tuition reimbursement is that the claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V.P. 373 F Supp. 2d 402, 416 [S.D.N.Y. 2005] aff’d 2006 SL 2334140 (2d cir. 2006); (Frank G. 459 F, 3d at 363-64), Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Edu. 226 F. 3d 60, 68 [2d Cit. 2000]; see Carter, 510 U.S. at 16 (noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required) such considerations include the parties, compliance or non-compliance with state and federal regulations pending review the reasonableness of the parties’ positions and like matters (Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ.736 F. 2ds at 773, 801-02 [1st Cir. 1984] aff’d 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect other action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)(iii) Warren G. v. Cumberland Co. Sc. Dist. 190 F 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026).However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(C)(iv)(I)(cc)(II)(bb).

“[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Carter, 510 U.S. at 16, 114 S.Ct. 361 (citation omitted); see also A.C., 553 F.3d at 171 (“In fashioning relief, equitable considerations relating to the reasonableness of the action taken by the parents are relevant.” (citation omitted)).Statutory language in the IDEA specifically contemplates that a reimbursement award may be reduced or denied if the parents, inter alia, fail to timely notify the school district of their intent to enroll their child in a private school at public expense; fail to make their child available for an evaluation; or otherwise act unreasonably. See 20 U.S.C. § 1412(a)(10)(C)(iii).A.D., 690 F. Supp. 2d at 215.

Private school tuition may be denied where parents have failed to cooperate with a school district or otherwise frustrated a district’s attempt to offer a FAPE.C.L. v. Scarsdale Union Free School District, 744 F.3d 826, at840 (2d Cir. 2014) (citing Warren G., 190 F.3d 85, 85-86 (3d Cir. 1999)), Forest Grove School Dist. v. T.A., 557 U.S. 230, 247 (2009)).Notably, parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons (see, C.L., 744 F.3d at 840 (equities weighed in favor of the Parents, as they attempted to find an appropriate placement within the school district, attempted to make contact with the recommended placement site and did not enroll the child in the private school until after they were unsuccessful at the CSE meeting); R.B. v. NYC Dept. of Education, 713 F.Supp.2d 235, 248-249 (S.D.N.Y. 2010); N.R. v. NYC Dept. of Education, 2009 WL 874061, *7; (S.D.N.Y. March 31, 2009) see also A.R. v. NYC Dept. of Education, 2013 WL 5312537, *10 (S.D.N.Y. Sept. 23, 2013) (“there was no evidence that Plaintiff ever failed to cooperate with the DOE, declined to visit any proposed placement, or notify the DOE of her dissatisfaction with its proposal. Therefore, the court [found] that a preponderance of the evidence demonstrate[d] Plaintiff’s cooperation with the DOE’s placement process and that equitable considerations weigh[ed] in favor of granting her relief”)).Where the parents “cooperate with the District in its efforts to meet its obligations under the IDEA…their pursuit of private placement [is] not a basis for denying their tuition reimbursement….” (C.L., 744 F.3d at 840).

STATUTE OF LIMITATION

On behalf of the District, REDACTED maintained that the Parents' claim with respect to any period of time prior to February 20, 2016 is time barred and must be dismissed as untimely.

A Parent must request a due process hearing within two years of when the Parent knew or should have known of the action that forms the basis of the Complaint. The IEP for the 2015-2016 school year was first developed at an annual review meeting held in the Spring of 2015 and was subsequently reviewed at the Parents request on July 21, 2015. This IEP was amended several times, the most recent being at the January 28, 2016 CSE meeting before the Parents placed REDACTED in REDACTED. The Parents' Due Process Complaint fails to mention the July 21, 2015 meeting; it reflects that the January 28, 2016 meeting before making IDEA allegations for the 2015-2016 school year. The Parents were represented by counsel at the January 28, 2016 CSE meeting and could have initiated a Due Process demand to challenge that IEP and/or prior IEPs within the two year SOL period. Courts have looked to the IEP's development date to determine whether the two-year statute of limitations has run in due process claims regarding the denial of a FAPE.Notably, whether the initial 2015 CSE date, July 21, 2015 or the January 28, 2016 date is used, that more than two years have since passed, and the statute of limitations for challenging the 2015-2016 school year IEPs has expired.

REDACTED stated that the Parents could have initiated a due process hearing at any time, but did not file a claim until February 20, 2018, more than two years after the IEPs for the 2015-2016 school year were developed, and REDACTED unilaterally placed at REDACTED.REDACTED participated in the CSE meetings held in the Spring 2015, as well as July 2015, and received a copy of the IEP prior to the start of the 2015-2016 school year. (SD- 4, 14) The Parents had previously received a Procedural Safeguards Notice that explained their rights regarding the special education process, which should have made them aware of the applicable statute of limitations. (SD- 5, 16). The Parents were represented by counsel at the January 2016 CSE meeting; however but did not file a Due Process hearing within two years of the date of such meeting.A Due Process Hearing was not requested until February 20, 2018.I agree with the District that the Parents' claim that prior to February 20, 2016 school year is barred as per the statute of limitations.

STUDENT’S ELIGIBILITY FOR SERVICES

Regarding the Districts position that REDACTED is longer eligible for services, I agree. Education Law §3202(1) provides that a child "over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition." The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district. Where students have obtained a high school diploma, they are no longer eligible for tuition free services from their District.

It is uncontroverted that REDACTED received a high school diploma when he graduated from REDACTED in June 2018. REDACTED 's exit summary lists his date of graduation/exit as June 2018, and notes that he received a Regents diploma. (SD-57) Moreover, REDACTED advised the District that REDACTED would be graduating from REDACTED with a high school diploma, and that REDACTED would be entering REDACTED College in September 2018. (SD-62) He also advised the District that he would not be seeking any additional education from the District after June 30, 2018. (SD-62)

REDACTED advised that his REDACTED currently attends REDACTED College as a postsecondary student. Given REDACTED 's June 2018 graduation and receipt of a high school diploma.

The Education Law §3202(1) no longer affords him the right to receive educational resources from the District.

PRONG I

REDACTED stated that the District considered REDACTED 's individual needs and met its obligations in developing appropriate IEPs for REDACTED throughout his REDACTED education; that the District's 2015-2016, 2016-2017, and 2017-2018 IEPs for [REDACTED] met such requirements and reflected the CSE's consideration of the Parents' concerns.

The CSE reviewed educational records, including but not limited to the following in order to develop IEPs for REDACTED:Counseling Progress Summaries; Formal/Informal Evaluations; a Level I Assessment; Guidance Reports; Parent Reports; Teacher Reports; Progress Notes; Report Cards; Speech and Language Reports; Behavior Intervention Plan Reports; REDACTED Reports; Psycho-Educational and Psychological Evaluations; a Neuropsychological Evaluation; Results from the CELF-5, CELF-5 Metalinguistic, BRIEF, NEPSY, WISC IV, Woodcock-Johnson III, NWEA, TOPL, OWLS, BASC - SRP(A), and Wechsler Adult Intelligence Scale Fourth Edition Tests; and a Transition Assessment through [REDACTED].

The District maintained that the CSE developed IEPs for REDACTED with appropriate special education programs and services to address REDACTED’s specific educational and post-secondary transition needs. REDACTED participated in a curriculum that was specifically tailored to his “idiosyncratic issues” with rigidity, reading comprehension, verbal fluency, working memory, processing speed, anxiety, sociability, frustration, and overly methodical nature, among other things.REDACTED 's IEP’s addressed his interests and post-secondary goals of being an artist or game-designer by providing animation classes as well as access to the BOCES REDACTED [REDACTED] Tech Computer Animation Program. The District's IEPs reflected special education programs and related services to support his needs in the least restrictive environment, including the provision of: 15:1 special core classes; 5:1 resource room program; 15:1 support skills class; small group social skills counseling; individual counseling; speech/language small group therapy; individual parent training; a 1:1 aide; a BIP and BIC support as necessary.

Furthermore, some of the District's recommendations were declined or disregarded by the Parents despite a demonstrated need or interest, including parent training, the REDACTED [REDACTED] Tech Computer Animation Program that suited REDACTED 's post-secondary goals and that [REDACTED] was successful in, and a scribe to help REDACTED with his pacing issues. (SD- 10, 14, 15; Tr. 1160-1161, 1257-1258). The District’s recommended placement directly addressed REDACTED 's significant reading difficulties. The District provided access to the scientific-based Achieve-3000 reading program; the January 28, 2016 IEP recommended that REDACTED would receive "a period of individualized reading instruction" and an extra "Support Skills" class to focus on reading and also recommended three quarterly reading goals. (SD-14) Moreover, the District sent a Prior Written Notice to the Parents, specifically describing that they would be adding "reading class every other day . . Add[ing] skills support . . . [and] Add[ing] appropriate reading and writing goals." (SD-16)

The District maintained that REDACTED attended the IEP meeting and discussed REDACTED 's reading deficit (SD-14; SD-15); REDACTED asserted that the Parents' rejection of the CSE's highly specialized and well-tailored IEP was detrimental to REDACTED’s functioning and progress.

Following the January 28, 2016 IEP, the District paid for the neuropsychological evaluation conducted by REDACTED at the REDACTED Center (SD-15, 19, 58; Tr. 79-81, 1361). Thereafter, the CSE considered all of REDACTED findings and recommendations in developing REDACTED 's IEPs throughout the 2016-2017 and 2017-2018 school years. (AD- 19; Tr. 360). REDACTED opined that many of REDACTED 's findings were known to the District; including that REDACTED had autism, cognitive, functional, social, and attentional difficulties. (Tr. 361-363, 367-368) However, some of REDACTED 's findings were opposite of the District's records. Certain parts of the REDACTED report portrayed REDACTED as significantly aggressive; the report noted that while the Parents had academic concerns regarding REDACTED’s current REDACTED teacher disagreed, believing that REDACTED did not have significant academic concerns and that he was doing well. (SD-19; Tr. 414-416). The District maintained that REDACTED had never been significantly defiant or aggressive during his time at REDACTED and that he displayed much better self-advocacy and interpersonal skills than the report indicated. District evaluations of REDACTED noted that he had a low full scale IQ, working memory, and processing speed, suggesting that the REDACTED 's functional difficulties were due to other factors that the District had additional knowledge of. (SD- 1, 19; Tr. 410-413, 538, 682, 691-692, 713) REDACTED 's common practice was to reach out to the student's district for information on the student's functioning. However, she did not contact the District in REDACTED 's case and only had information from the REDACTED when writing her report. (Tr. 1604-1605). The District considered but did not incorporate all of REDACTED 's recommendations into REDACTED 's IEPs as it disagreed with certain findings. (Tr. 417)

The District maintained that it provided REDACTED with an education in the least restrictive environment that suited his educational needs, which required that certain recommendations from the REDACTED report be implemented in less severe and nonrestrictive ways. The report recommended a highly structured classroom setting with a very low student to teacher ratio that allows for 1:1 instruction and support as needed throughout the day;REDACTED 's District classroom setting had a low student to teacher ratio,a 1:1 aide to assist him (Tr. 419) Furthermore, the report suggested that REDACTED have minimal transitions throughout the school day. (SD-19) Given REDACTED 's issues with rigidity and frustration, the least restrictive environment for him still included a certain amount of pullout support services as listed in his IEPs; transitions from one classroom to another were also not problematic for REDACTED during his time in the District. (Tr. 420, 437-438)

As per REDACTED, REDACTED 's social development review suggested to the District that REDACTED High School remained the least restrictive environment, even after he was placed in REDACTED.REDACTED had friends in REDACTED and his frustration issues were less frequent. (Tr. 498-502). During his time in the District REDACTED participated in certain general education classes and role models were helpful to him. (Tr. 33, 675)

The District maintained that REDACTED needs and benefits from being with typical and non-aggressive/behavioral peers. As per REDACTED 's testimony; wherein she stated that REDACTED could "definitely" benefit from having typical peer role models at a higher social-emotional level than him because it was "one of the ways" he "could potentially learn appropriate behaviors". (Tr. 1639-1640).

The District asserts throughout REDACTED 's time in REDACTED High School, he made progress academically, behaviorally, and socially. REDACTED, the school psychologist at REDACTED High School, testified that by 11^th grade REDACTED 's "maturity had increased where . . . he really showed that he was learning from situations" and "he was able to stay in class and move on . . . pushing beyond those difficulties and staying there and getting his work done and doing [ ] really good with that." (Tr. 450-452, 498-499) She further stated that he would often be with kids from his classes and that he formed a close friendship with a girl who he had not been friends within prior years. (Tr. 502) REDACTED 's social progress afforded him a positive experience throughout high school, as he developed relationships with other students and did not experience a noteworthy level of negativity or bullying from other students. (Tr. 503)

REDACTED, REDACTED 's 11^th grade certified special education English teacher, agreed with REDACTED 's remarks, testifying that REDACTED engaged in-group work with peers, was active in class, voiced his own opinions in conversations, and "functioned quite well in the class behaviorally." (Tr. 651, 668-670) She testified that the support REDACTED received in the District allowed him to make academic progress, describing his aide as "fantastic" and noting that verbal cues and graphic organizers helped REDACTED complete assignments. (Tr. 671) REDACTED even "got up in front of the class and spoke in front of seven kids"; which REDACTED derived "really signifies how well he was doing, that he felt comfortable in doing that in giving a presentation." (Tr. 673-674)

REDACTED 's BIP reports noted that, throughout the 2015-2016 school year, REDACTED made progress and mostly demonstrated proper behavior in his classes. (SD-11). REDACTED stated that REDACTED matured and learned from his mistakes, less frequently displaying atypical behavior or saying inappropriate things. (Tr. 498) REDACTED was able to control his rigidity issues, decreasing the amount of times he took breaks from class or went for a walk, and enhancing his in-class proficiency at completing his work. (Tr. 499) He was also successfully working towards his postsecondary goals, excelling in the REDACTED vocational program. (Tr. 483, 485-486, 500, 1163-1164)

REDACTED noted that REDACTED was assessed to have a full scale IQ in the 21^st percentile, which placed him within the low average range. REDACTED 's District report cards showed that REDACTED received grades in the high nineties in his general education advanced art classes, grades in the eighties in some core classes, and grades in the seventies in his core classes that gave him the most difficulty. (SD-2) REDACTED testified that the REDACTED 's high grades were accurate representations of his success within the District. (Tr. 532-533). REDACTED 's low processing speed result meant that he struggled with processing simple or routine material quickly and accurately. (SD-1) REDACTED stated that REDACTED 's working memory issues would affect his ability to access information in an immediate moment when answering a question, as well as accessing memories from the course of a full year of material; similarly, REDACTED 's processing speed would affect his ability to understand and accurately process questions as he read them. (Tr. 530-531)

REDACTED stated that the evidence revealed that (a) the District failed to meet its burden in establishing REDACTED was provided a FAPE during the 2015-2016, 2016-2017, and 2017-2018 school years, (b) REDACTED’s unilateral placement at the REDACTED for the 2015-2016, 2016-2017, and 2017-2018 school years was appropriate, and (c) the equities favor full reimbursement of the costs attendant to that placement to the parents. As such, the requested relief should be granted in its entirety and the parents awarded full reimbursement for the costs attendant to REDACTED’s placement at the REDACTED for the 2015-2016, 2016-2017, and 2017-2018 school years.

Parents assert that the District failed to provide any proof during the hearing to establish either REDACTED’s progress toward achieving his special education goals or the effectiveness of its GOAL Program (ie. IEP Progress Reports, assessments, data, progress monitoring, baseline or other testing, etc.) other than a report card and the self-serving testimony of its Director of Special Education who never formally observed REDACTED in the classroom, a school psychologist whose interactions were limited to pull-out individual counseling services 2 x month and an evaluation in 2013, and an English teacher who never issued any formal reports or evaluations of REDACTED, never conducted any progress monitoring or other baseline testing and never attended any of REDACTED’s CSE meetings or issued any reports in connection therewith. (Tr. at 206, 567, 709, 740).

The REDACTED program failed to meet the child’s special education needs and otherwise afford meaningful progress in his areas of deficit and failed to account for REDACTED’s unique special education needs. REDACTED recommended a program able to render a combination of supports to REDACTED throughout the course of the school day, one capable of providing a high level or “intense” social, emotional and behavioral supports throughout the day, and a low student-teacher ratio (Tr. at 1574-1576). For its part, the District recommended the REDACTED program, a self-contained, regents track program with a 15-1 ratio and the addition of a classroom aide whose duties were of course limited by her title. It also recommended, albeit belatedly, counseling twice per week, and speech language services, albeit absent an evaluation. It provided no opportunities for 1:1 instruction, embedded social/emotional support throughout the day nor a low student-teacher ratio; this was not the program envisioned by REDACTED, nor was it able to address REDACTED’s intensive needs as noted herein.

REDACTED required a classroom that operated at a very slow pace to manage not only his deficits in working memory and processing speed, but the high frequency of off-task, work-interfering behaviors; not one that simply encouraged REDACTED to simply move forward whether he was ready or not and failed to account for his particular deficits. (Tr. at 1576). REDACTED recommended 1:1 instruction; even in a 1:1 setting REDACTED still required a lot of behavioral management; she recommended minimal transitions throughout the day to minimize REDACTED’s distress triggers, as REDACTED had difficulty moving in between tasks and activities. (Tr. at 1577, 1580-1581). If transitions were minimized, REDACTED would be more available for learning. (Tr. at 1582). The District’s proffered GOAL program offered no or minimal opportunities for 1:1 instruction, did not allow REDACTED to work at his own pace, did not account for or address the frequency of off-task behaviors, and did not minimize transitions.

REDACTED recommended a modified and individualized curriculum to meet REDACTED’s learning style and pace and to address his deficits in working memory and processing speed; a curriculum embedded with life skills, a staff trained to work with students with autism spectrum disorder, and a learning environment that minimized sensory and environmental distractors. (Tr. at 1582-1585). To the extent REDACTED had above average ratings in the taste, smell and touch response domain consistent with sensory aversion, REDACTED recommended collecting data on REDACTED’s sensory aversions. (Tr. at 1586-1588). REDACTED noted REDACTED’s communications skills were commensurate with those of a three year-old child and that his functional and adaptive skills were substantially below expected levels and hence he required services and skill-building in this area. (Tr. at 1591-1593).

REDACTED stated that in developing REDACTED’s educational program and the CSE’s persistent insistence on placement in the GOAL program, the District failed to provide REDACTED with an educational program during the course of the 2015-2016, 2016-2017, and 2017-2018 school years calculated to ensure a meaningful benefit in his specific areas of need.

REDACTED stated the District provided only a single witness with direct knowledge of REDACTED’s instruction within the GOAL Program. REDACTED’s English Teacher for the 2015-2016 school year testified; she conceded that she never conducted any baseline or other testing of REDACTED in order to determine his reading and writing proficiency, did not engage in any progress monitoring during the year to the extent she would have been able to without a clearly defined baseline, and did not conduct any assessment of REDACTED’s functioning prior to his removal. (Tr. at 740-741). At the start of the school year, her knowledge of REDACTED was limited to her review of REDACTED’s IEP; she did not review any evaluations or other assessments of REDACTED notwithstanding their availability. (Tr. at 710, 730). REDACTED could not explain why no reading goals appeared on REDACTED’s 2015-2016 IEP. (Tr. at 730). She did not participate in any CSE meetings regarding REDACTED and her input with respect to the same was limited to verbal communications with REDACTED; no formal or informal assessments or reports was provided for the CSE’s consideration. (Tr. at 709).

The District provided no evidence to substantiate the efficacy of the unsupported daily reading program added to REDACTED’s IEP in January, 2016 and failed to provide a rationale for the absence of such a program in the past or even the absence of goals in the area of reading to address REDACTED’s unique deficits in the area. REDACTED advised the District implemented the Achieve 3000 program in class, a computer-based reading program with which she was trained in 2018, after REDACTED had already left. (Tr. at 721). Parents maintain that REDACTED possessed global deficits in reading at least 3-4 years below grade-level; despite this, reading instruction was limited to Achieve 3000 program administered typically once per week with minimal to no direct teacher involvement and with an exclusive focus on comprehension. Classroom instruction was limited to whole group instruction and close reading in a small group when time provided. (Tr. at 722-728)

Parent maintained that the District provided no evidence to establish that the bullying and/or harassment that REDACTED experienced while in the REDACTED program was addressed. Additionally, the District’s failure to address not only the occurrences complained of but the ramifications on [REDACTED]’s social and emotional functioning which, consequently, were well known, can be viewed as no less than a critical error serving only to deny REDACTED a FAPE. REDACTED was a victim of bullying, the District was on notice of the bullying, the district was indifferent as staff did little to correct the situation and lastly, whatever steps was taken by the district were insufficient. Furthermore, the bullying substantially restricted REDACTED’s educational opportunities because he either missed classroom instruction as a result of being bullied and/or was not motivated or able to concentrate as a result of being bullied.

The CSE failed to develop adequate, measurable annual goals for REDACTED. As noted above and by way of example, minimally, during the 2015-2016 school year, Goal Nos. 5, 10 and 11 are either vague or compound (ie. requiring multiple independent steps which each on their own would serve as a goal) and are simply immeasurable. (Dist. Ex. 14). Further, the CSE failed to present goals to address REDACTED’s needs in the areas of seeking assistance from staff, interpreting social cues, flexibility or rigidity, working within a group, assistance with utilizing technology, attending skills, impulsivity and distractibility, and low muscle tone. (Dist. Ex. 14).

A per REDACTED, notwithstanding the minimal alterations to REDACTED’s IEP arising from a meeting of the CSE in January, 2016 and its persistent recommendation of the REDACTED Program; the CSE failed to provide appropriate academic, social, and emotional support. To wit, an appropriate academic placement, necessary related services, as well as needed supplementary aids and services, accommodations and modifications, as set forth in the evaluation and report of REDACTED. Absent these supports, REDACTED was unable to and would not have been above to make meaningful progress in his specific areas of need. The CSE’s actions and/or lack of action, together with the various substantive and procedural infirmities set forth herein and above, acting either alone or cumulatively, have served to deny REDACTED a FAPE in violation of the IDEA and corresponding New York State Law for the 2015-2016, 2016-2017, and 2017-2018 school years.

PRONG II

REDACTED stated that REDACTED is not a New York state approved school, wherein "none of [its] teachers need to have certifications in special education or in content areas." (Tr. 795). Additionally, that the REDACTED staff's insufficient experience and/or qualifications, contributed to REDACTED 's inability to provide REDACTED with an appropriate educational experience as it did not require that its teachers and or administrators have any prior educational experience or teaching or New York State certification. (Tr. 781-782, 795, 1043).REDACTED did not employ a BCBA and no one at REDACTED who worked with REDACTED had any ABA training to provide support as per REDACTED’s recommendations. (Tr. 1606).

REDACTED, REDACTED’s English Language Arts teacher had never taught a high school student before her first day in REDACTED 's classroom. (Tr. 1406) REDACTED, who taught REDACTED in multiple history courses, admitted that his work experience prior to becoming a REDACTED teacher consisted of helping to “… manage a dance studio" and working in a deli. (Tr. 995, 1042-1043)

REDACTED attended the REDACTED ("REDACTED ") for students with Autism throughout his time in REDACTED, which generally consisted of an 8:1:1 classroom setting with no opportunities to be educated with non-disabled peers and/or non-autistic peers. (SD-42). [REDACTED]'s intellectual functioning fell within the low average range or bottom 25% of the students in his class. (Tr. 799-800). REDACTED 's principal executive director, REDACTED, said it was necessary to place REDACTED in tenth grade because two years would not have been enough time to "build his skills". (Tr. 764). As per the District’s counsel, REDACTED had success in his eleventh grade classes while he was in the District.

The District also maintained that REDACTED failed to implement any specialized strategies to address REDACTED 's unique educational needs. During the 2016-2017 year, did not add any new goals for REDACTED and relied on the District's provided goals. REDACTED stated that such action further supports that the goals developed by the District was tailored to meet REDACTED 's needs. (P A; Tr. 839, 857) Furthermore, REDACTED 's program required REDACTED to physically transition from class to class, albeit within a close proximity, which the Parents have alleged was problematic for REDACTED. (Tr. 800-801)

REDACTED stated that REDACTED 's progress reports indicate bizarre leaps of progress that conflict with many of the difficulties that REDACTED still struggled with at the time he had his exit summary. For example, REDACTED 's 2016-2017 progress report states that REDACTED was still progressing gradually towards most of his goals after the third quarter; however, for eight of these goals, REDACTED had achieved the goal by the fourth quarter. (P A) Moreover, certain goals that REDACTED 'achieved' encompass the following: mastery of notetaking abilities, proper grammar usage in writing samples, identifying his own emotions, interacting in a socially acceptable manner with adults and peers, and displaying an increased willingness to socialize with peers. (P A) Although REDACTED reported that REDACTED achieved these goals, his exit summary states that he "takes notes at a slow pace, making it difficult for him to keep pace with the lesson," "has difficulty using appropriate written convention, semantics, syntax, and text structure in his writing," "continue[s] to struggle socially and emotionally," and "has difficulty interpreting social cues." (SD-57) Additionally, REDACTED 's progress report for 2017-2018 indicates that he achieved all but three of his eighteen goals. (P B) Notably, it states that REDACTED has achieved the goal of increasing his willingness to engage in non-preferred activities and topics during academic and social situations.

REDACTED maintained that REDACTED 's FBA and exit summary both highlight how he fails to interact with students who have dissimilar interests to him. (SD- 54, 57) In fact, his exit summary states that REDACTED "needs to improve flexibility and increase his willingness to engage in non-preferred activities or topics of conversation." (SD-57) Moreover, REDACTED 's progress summary states that he has achieved the goal of independently identifying solutions to a presenting problem during challenging situations. (P B) Yet REDACTED 's exit summary states that he "needs to improve his ability to independently utilize strategies to work through a problem or uncomfortable situation." (SD-57) It further states that REDACTED "needs to increase his ability to independently identify solutions to a presented problem during a challenging situation." (SD-57) Therefore, as per REDACTED, REDACTED 's progress reports for REDACTED contradict the actual behavior that REDACTED displayed even at the very end of his time with REDACTED; additionally, REDACTED failed in assessing REDACTED 's progress and to provide him with an environment that was properly suited towards his needs.

District’s counsel stated that REDACTED failed to address REDACTED 's social emotional goals. During the 2017-2018 school year, REDACTED disregarded the IEP recommended social emotional goals that were tailored to meet REDACTED 's needs. (SD- 44-8; P B) REDACTED 's counselor for the 2017-2018 year at REDACTED, REDACTED, testified that she did not work with REDACTED on his collaborative problem-solving goal and/or record any observations and keep a progress report regarding such goal. (Tr. 973; SD-44) REDACTED testified that she didn’t work on a goal for REDACTED to identify his own emotions and or to use positive strategies when faced with social conflict with peers and adults. (Tr. 974; SD-44). REDACTED conceded that she did not work with REDACTED on a goal to address his negative emotions and identify and use an appropriate coping skill. (SD-44; Tr. 973) When asked what the reason was for disregarding such recommended social emotional goals, REDACTED stated that she had no reason. (Tr. 973) Instead, REDACTED acknowledged that she and the previous counselor, REDACTED based progress reports on her own personal recommendations (Tr. 970, 972-973)

REDACTED opined that the Social/Emotional Annual Report Summary dated June 9, 2017 for the 2016-2017 school year prepared by REDACTED (SD-41) and the Social/Emotional Annual Report Summary dated January 18, 2018, which were prepared one year later by REDACTED indicated that she merely cut and pasted the identical first paragraph under Behavioral Observation into her report, and carried over various comments.

Additionally, that REDACTED 's program failed to properly address, and support REDACTED 's postsecondary goals. Per his REDACTED Vocational Assessment, REDACTED had remained consistent in his interests and desires from the time he first entered high school; the BOCES REDACTED vocational computer animation program, suggested that REDACTED had both a legitimate passion and talent for art. (SD-47). REDACTED stated that REDACTED 's transcript indicates that REDACTED took a single practical art course, named "Art," each year after leaving the District. (P C); REDACTED 's attempt at fulfilling REDACTED 's postsecondary needs consisted of placing him in a bowling alley in REDACTED to work under supervisors which caused him to miss time in Life Skills and Skill Building, among other classes. (Tr. 779, 889-890) REDACTED 's reports regarding REDACTED 's postsecondary goals directly contradict one another. For example, on REDACTED 's LEVEL 1 Vocational Interview, two different REDACTED teachers were asked if REDACTED 's postsecondary goals and expectations were realistic. (SD-47) REDACTED 's Art Therapist REDACTED stated "[i]t's a difficult career path," which suggests that REDACTED 's success is unlikely; meanwhile REDACTED 's math teacher REDACTED said "[y]es." (SD-47).

The District maintained that REDACTED failed to support REDACTED 's speech and language needs. During the District's CSE meeting to develop an IEP for REDACTED 's 2016-2017 school year, REDACTED admitted that it was not providing speech and language services to REDACTED. (Tr. 83-84, 89) REDACTED testified that this failure is "potentially" concerning, "because the nature of REDACTED 's specific communication deficits, particularly pragmatic language, could be addressed within a speech language therapy setting." (Tr. 1639). Despite the fact that REDACTED testified that this was rectified in that REDACTED received speech and language therapy in the last semester of his 2017-2018 school year, she noted that there is no final entry for REDACTED 's speech and language goal. (Tr. 865). REDACTED stated that it is unclear whether REDACTED kept records regarding the outcome of this goal and unclear why REDACTED failed to initially provide speech and language services to REDACTED.

At REDACTED, students who were on the autism spectrum surrounded REDACTED. (Tr. 1072). REDACTED testified, "I think it would just lend itself to regression because he was not seeing those typical behaviors of kids, he's not seeing what the possibilities of what a typical interaction could be among peers." (Tr. 676). REDACTED, one of REDACTED 's teachers at REDACTED, testified that some of the students had extreme behavioral issues that would cause classroom interruptions; he said that sometimes students would "exhibit violent behavior, you know, they might get stuck in the moment, throw a desk." (Tr. 1010). One student in particular, who REDACTED was grouped with in many of his classes at REDACTED, "would throw desks" and "would get verbally aggressive to staff". (Tr. 1058) These outbursts occurred on multiple different occasions and would require REDACTED staff to move REDACTED and the other students out of the classroom while they dealt with the situation. (Tr. 1059) REDACTED, REDACTED 's 11^th and 12^th grade English teacher at REDACTED, also testified that some kids "refused to sit in seats [and] just lay on the floor . . . with a pillow. She reiterated that a particular student in her class would have outbursts which caused REDACTED to react by "becoming anxious and moving in his chair, to asking to leave the room". (Tr. 1413) She noted that the other students in REDACTED 's class frequently cursed in class and that she is "sure there were times" where these kids cursed at REDACTED directly. (Tr. 1414, 1416) REDACTED testified that this type of behavior occurred roughly "once a week" and that REDACTED would respond to big outbursts by "going a little bit inward and he would hit his ears as a way of . . . soothing himself." (Tr. 1516, 1518).

When information regarding other students with behavioral issues was presented to REDACTED, she agreed that this type of disruptive environment would be "potentially problematic" and "may incite or trigger behaviors" for an individual with the auditory sensitivities of [REDACTED]. (Tr. 1629-1630) REDACTED noted that being exposed to this extreme behavior on a regular basis could interfere with REDACTED 's learning in the classroom and stated that "elements of the recommendations that [she] made [were] perhaps not being met to their fullest." (Tr. 1634-1635) REDACTED further stated that it was "unfortunate that REDACTED experienced" the aforementioned behavioral disruptions and that "it is not ideal for REDACTED to have to experience physiological distress or emotional distress." (Tr. 1631-1632).

Furthermore, as per REDACTED many of REDACTED 's reports regarding REDACTED functioning provide conflicting information and describe instances that show REDACTED 's behavioral regression. For instance, REDACTED 's social/emotional progress report summary dated June 9, 2017, initially states that REDACTED "has shown tremendous growth since arriving . . . at REDACTED "; however, in the subsequent paragraph, it stated that REDACTED continues "to struggle socially, as well as emotionally." It further states that REDACTED "is very rigid in his thinking and when a topic is introduced during class or a social conversation that he does not favor he will become extremely upset and resistant to engage." (SD-41) REDACTED "required time to de-escalate before being available for support from the counselor." Later in the report, it states that REDACTED struggles to manage his emotions, and that he has difficulty interacting with other students and REDACTED staff in an appropriate manner. As per REDACTED, when comparing this report with the behavior that REDACTED displayed throughout his eleventh grade year in REDACTED High School, it is clear that he regressed.

REDACTED stated that the testimony of REDACTED, illustrates that REDACTED regressed during his initial years in REDACTED and did not achieve a meaningful amount of progress throughout his time there. When REDACTED left the District in February 2016, he had demonstrated improved maturity, and worked through his difficulties rather than becoming overwhelmed by them. (Tr. 545, 546, 563-564). REDACTED 's entrance into REDACTED, he regressed and would shut down when approached with undesirable conversation topics, become extremely anxious and isolate himself socially, and struggled to self-advocate. (Tr. 769-770, 773-774). REDACTED began attending REDACTED and he would "become self-injurious when he got really frustrated. He would smack himself in the face, he would hurt his ears, pinch and hit. He would become self-stimulatory. . . He would start to flap his fingers and hands." (Tr. 770) This uncontrollable behavior would require REDACTED to leave the classroom "once or twice a period" as "he couldn't tolerate what was happening". (Tr. 771)

REDACTED testified that REDACTED made violent threats and gestures towards his teachers and other students in REDACTED. (Tr. 1054-1055) Specifically, when REDACTED was angry, he "would often clench a fist or he would have a pencil and do [ ] a stabbing motion" directed at "a teacher there that he took a disliking to", as well as at other students "[o]ccasionally." (Tr. 1054-1055). REDACTED testified that REDACTED 's tendency to make threats during his initial period at REDACTED culminated in the form of a hateful letter sent to a secretary, because she changed his the classroom (Tr. 1029)

REDACTED stated that according to REDACTED 's social/emotional annual report summary, dated January 18, 2018, REDACTED "does continue to struggle socially as well as emotionally" and "has a hard time participating in non-preferred activities or conversations." (SD-49). Furthermore, in Social Studies class, REDACTED “became agitated, disengaged, and refused to partake in the film”, that was discussed (SD-49). The report further contradicts itself by saying that REDACTED "has improved in his ability to and willingness to engage in non-preferred activities," but then says that REDACTED will request walking breaks during class immediately thereafter. (SD-49). Despite the fact that REDACTED reports say that REDACTED made behavioral progress, the descriptions of REDACTED indicate that he was less comfortable socially and more aggressive behaviorally. REDACTED stated that in her professional opinion it took REDACTED "a year and a half to get to where he was when he was [at REDACTED], so . . . I would say that there were signs of regression" at REDACTED. (Tr. 684)

REDACTED opined that REDACTED 's District BIP and REDACTED 's FBA indicated that REDACTED failed to make meaningful progress during his time in REDACTED. REDACTED 's REDACTED FBA notes from January 3, 2018 indicated that he tends to stay by himself socially and gets easily frustrated by his peers; it further states that REDACTED gravitates towards adults and has difficulty remaining on task. (SD-54). Moreover, REDACTED 's comments from January 9, 2018 stated that his son became very upset and yelled at a peer in a physical education class because they accidentally stepped on REDACTED 's jacket.

The District’s counsel stated that REDACTED implemented a curriculum that lacked the capacity to address REDACTED 's needs. REDACTED High School teacher REDACTED testified that, given REDACTED 's progress as an eleventh grader in her class, repeating tenth grade would likely be emotionally confusing to him, and that "he had achieved certain milestones as far as working towards successful goals, [so] to go back and repeat it would just seem redundant." (Tr. 697-698).

At REDACTED, REDACTED received instruction from teachers who lacked certification and or master's degrees in their subject areas. (Tr. 789, 792-793, 795, 808-809, 812, 814, 820-821, 824-825, 835) REDACTED 's English teacher, REDACTED, lacked a valid certification and had no prior experience teaching high-school English; she modified the grade-level curriculum for [REDACTED] by arbitrarily giving him a heavily decreased amount of questions in his assignments. (Tr. 1381) REDACTED stated that there was no scientific based research program implemented at REDACTED and that her teacher-made assessments involved "literally just sitting down and writing out the questions and things of what we did and stopping every few days to make sure that information was gained". (Tr. 1383)

District Assistant Superintendent, REDACTED, testified that "the minimal progress [REDACTED] made [at REDACTED] was probably more due to maturity." (Tr. 188) REDACTED even acknowledged that some of REDACTED 's progress over his time in REDACTED is attributed to his maturation. (Tr. 1082).

REDACTED stated that REDACTED asserted that REDACTED made progress at REDACTED because the amount of time that he was required to help REDACTED with homework decreased. (Tr. 1230) However, he stated that he has always had to help REDACTED with his homework, and that after transferring REDACTED to REDACTED he was still required to help REDACTED with homework multiple times each week. (Tr. 1264, 1550) REDACTED also admits that by the time REDACTED had transferred to REDACTED, he had already spent a full year doing homework for English 10 and half a year doing homework for English 11 in the District's program. (Tr. 1473) Moreover, REDACTED stated that this homework was not mandatory, which REDACTED was aware of as "he was definitely told that . . . [homework] shouldn't be a source of . . . frustration." (Tr. 1504) REDACTED admitted that REDACTED 's homework completion would vary and that "there were weeks where he . . . returned it with 100 percent . . . and then there were other times that he might miss." (Tr. 1503)

Parents maintained that REDACTED’s placement at the REDACTED during the 2015-2016, 2016-2017, and 2017-2018 school years was in all respects appropriate. REDACTED noted that triennial testing performed by the District in December, 2013 revealed a Full Scale IQ of 88, Processing Speed in the 5th%, Working Memory in the 3rd%, Academic Fluency in the .2nd%, Broad Math in the 5th%, Broad Reading in the 4th%, Total Achievement in the 6th%, and Pragmatic Language in the 7th%. (Dist. Ex. 1). Reading Fluency was in the 1st% and Passage Compression was scored in the 5th%. (Dist. Ex. 1). In terms of REDACTED’s social emotional functioning, at-risk scores with respect to Hyperactivity and Interpersonal Relations while Clinically Significant scores were reported as “Atypical with Anxiety. (Dist. Ex. 1). A neuropsychological evaluation performed in 2016 revealed similar deficits. That testing revealed a Full Scale IQ of 85, Processing Speed in the 3rd%, Working Memory in the 9th%, as well as significant deficits in Executive Functioning, Reading, Math, Written Language, Expressive and Written Communication, and Socialization. (Dist. Ex. 19).

Upon admission to REDACTED, the staff noted REDACTED to be obsessive, perseverative, and shut down. (Tr. at 772-775). The initial impressions of REDACTED’s counselor found him to be anxious, quiet and non-social. (Tr. at 930-931). REDACTED’s English teacher described him when he first came to her in 2016 as struggling in reading and writing and operating significantly below grade-level; the subjects produced great anxiety and refusal; he was quiet, anxious, frustrated and unwilling to participate in a group. (Tr. at 1375, 1378, 1394).

Parent argues that the REDACTED utilizes a research based approach to instruct children with significant disabilities with Autism Spectrum Disorder. The program is individualized for each student, utilizing a therapeutic, collaborative problem solving model. The program allows for on-the-spot interventions and applies a social-thinking curriculum, teaching models of social interaction specific to children with autism. They readily utilize therapeutic interventions, social thinking, and small class settings of no more than 8 students allowing for individualized, direct instruction. (Tr. at 759-760, 906, 921, 924-925).

When REDACTED first entered the REDACTED Regents Track Program at REDACTED in February, 2016 the staff reviewed a variety of data from different sources including REDACTED’s IEPs, psychological assessments, progress reports from the parents and REDACTED. (Tr. at 762). REDACTED 's classes would range from 4-8 students in a therapeutic environment and included both a special education teacher and teaching assistant. (Tr. at 765-766). Upon his entry, REDACTED was evaluated and the staff met regularly, discussing REDACTED 's strengths and weaknesses and how to build tools into his individual program, including individualized instruction in his deficit areas, to work toward his particular goals. (Tr. at 766, 915-916). The staff conducted a functional behavioral assessment, developed a behavioral intervention plan and built strategies into his program to address his anxiety, social deficits, speech and language deficits, perspective taking, and expressive language difficulties, amongst others. (Tr. at 768-769). The staff was trained in the collaborative problem solving approach, the model was implemented throughout the course of the day as situations would arise; REDACTED’s needs would also be met through counseling and speech/language therapy. (Tr. at 770-771, 906-907).

Regarding REDACTED’s progress at REDACTED, at the close of the 2017-2018 school year REDACTED had earned both the NYS CDOS Certificate and a NYS Regents Diploma, passing Regents Exams in Global Studies, U.S. History, and English (Tr. at 1249, 1553-1554). Staff reports are equally revealing. By the time of his graduation REDACTED went from being obsessive, perseverative, and shut down to being able to express himself and discuss topics outside his areas of interest; he became more accepting and understanding. (Tr. at 772-775). In the social/emotional realm, REDACTED became more independent and able to self-advocate; he was able to identify triggers and developed coping strategies. REDACTED’s teachers and related service providers echoed these sentiments (Tr. at 930-931, 1015-1017, 1030-1039, 1106, 1109, 1385, 1388, 1396-1400; see also, Dist. Ex. 18; Par. A, B).

Taken together, given REDACTED’s above-described needs, the description provided in the hearing record of the REDACTED program at its various supports, as well as REDACTED’s cited progress while in attendance, REDACTED opined that the REDACTED provided REDACTED with specially designed instruction to address his identified needs and thus represents an appropriate placement for the child.

PRONG III

The District asserts that Parents removed REDACTED from REDACTED High School, placed him in REDACTED, and made him retake the tenth grade. REDACTED stated that the reason that he transferred REDACTED to REDACTED was not because of anything wrong with the District, but rather that the Parents simply wanted to place REDACTED in REDACTED. (Tr. 517-518; 526) Furthermore, REDACTED testified that his rationale for transferring to REDACTED was not because of any concerns with his son's grades, and noted that [g]oing into his third year . . . if you look at his report cards, he was making progress." (Tr. 1145, 1149) REDACTED acknowledged that his perception that REDACTED 's difficulties were "getting worse" were based on the stigma that REDACTED was getting older and his difficulties were still present; even though REDACTED 's report cards and progress reports demonstrated progress, REDACTED convinced himself that REDACTED was regressing because he still had educational difficulties typical of his disability. (Tr. 1122-1123) REDACTED testified, "as far as the report cards were concerned, he is doing fine, he is passing all his classes, he's advancing . . . but he is certainly not reading or writing at an age-appropriate or grade-appropriate level". (Tr. 1125-1126)

REDACTED testified that "the last thing on [his] mind was whether or not teachers were certified, what their degrees were or what their potentials were." (Tr. 1477) Additionally, he stated that it did not concern him to know that REDACTED would move throughout the day with disruptive classmates who would throw desks, spit, curse, and yell. (Tr. 1480, 1539) REDACTED admitted that he "assumed that all of that would be possible based on what [he] knew about the school." (Tr. 1533) He further stated that "[i]t was [his] expectation that most, if not all of the students there [at REDACTED] would not be age-appropriate emotionally, that was [his] assumption, that was [his] expectation." (Tr. 1540) When this sentiment is compared with REDACTED 's recommendations that REDACTED participate in a school/classroom environment designed to minimize sensory and environmental distractors that interfere with REDACTED 's learning, which she acknowledged the REDACTED program did not satisfy given the consistent disruptive emotional outbursts of many of REDACTED 's peers, it suggests that the equities do not favor the parents. (Tr. 1629-1632, 1637-1638) Rather, the Parents ignored the recommendation of the very IEE and evaluator that the Parents sought at District expense.

As per District’s counsel REDACTED admitted that he was aware of certain outside variables which made it more difficult for REDACTED to succeed in his first few years at REDACTED -- REDACTED 's sister left for college during his tenth grade year in the District, which was very difficult for REDACTED to deal with and caused the Parents to see a family therapist. (Tr. 1124-1125) REDACTED also testified that, around this time, there was an incident at home, wherein REDACTED "pushed back in a physical way in sort of a threatening way" and REDACTED responded by making "some effort to control him that became physical at some point." (Tr. 1257) Furthermore, REDACTED noted that he had retained a private tutor to help REDACTED in middle school and that he ceased providing REDACTED with services around the time that he entered high school. (Tr. 1267-1269) REDACTED ignored all of the signs that REDACTED was making progress and instead relied on his anecdotal observations and the opinions of his friends and family to influence his decision to unilaterally place REDACTED at REDACTED. (Tr. 1193-1194) REDACTED noted that REDACTED 's anxiety and unsupported expectation that REDACTED was going to graduate after another year and a half within the District caused him to forsake the exponential progress that REDACTED was making as he became increasingly comfortable in REDACTED High School and caused REDACTED to start all over when he transferred into REDACTED. REDACTED knew that his son would be "starting in the middle of the year" and said that he "think[s] that made the transition perhaps a little more difficult than it would have been." (Tr. 1187) REDACTED testified that REDACTED expressed numerous reservations and anxieties about leaving the District, which he ultimately ignored. REDACTED "knew that he was going to miss certain people primarily so that caused him to display mixed emotions at home and at certain points in time also in school." (Tr. 1185) REDACTED stated that “REDACTED” asked me today, he knew I was going to the hearing, and he asked me to say well, you know, tell the people at REDACTED High School I miss them." (Tr. 1253) As REDACTED admitted that he overlooked REDACTED 's improving grades and progress reports, as well as REDACTED 's outspoken reservations about leaving the District and chose to place REDACTED in REDACTED because of his subjective observations and the subjective opinions of the non-professional friends and family who were familiar with REDACTED. REDACTED stated that the equities do not entitle him to tuition reimbursement from the District.

REDACTED noted that the Parents continued to reject the District's continued efforts to recommend an appropriate placement for REDACTED within REDACTED High School. Initially, [REDACTED] experienced behavioral regression at REDACTED, had more frequent outbursts and for the first time displayed aggressive tendencies. The District tried to alleviate his regression by continuously recommending that he come back to REDACTED High School, where he had been making significant progress. The District continued to update REDACTED 's IEPs to reflect appropriate programs and expand on his goals at all times. (Tr. 743-744) REDACTED indicated that he was satisfied with the IEPs that the District had developed for REDACTED from the 2015-2016 school year throughout the 2017-2018 school year and stated that he would have accepted them if REDACTED remained in REDACTED High School instead of REDACTED. (SD-15, Tr. 66, 526) After two and a half years at REDACTED, REDACTED displayed less growth than he had during his eleventh grade year in REDACTED High School. Although the District was prepared for REDACTED to remain in high school until 2020, the Parents indicated that he would be graduating in 2018 and going to REDACTED Community College (SD-62; Tr. 186)

Finally, REDACTED 's exit summary noted his persisting difficulties in nearly all areas, demonstrates that the Parents chose to keep REDACTED in a program that required two and a half years to elicit even mildly comparable academic, social, and behavioral levels than REDACTED had already achieved by his eleventh grade year in REDACTED High School. As such, it is the Districts position that the equities do not support the Parents' claim for compensatory education and/or tuition reimbursement.

Moreover, where the Parents ask that the District provide REDACTED with both an updated independent comprehensive psychological evaluation, an assessment regarding necessary and appropriate assistive technology, the District asserts that this is unnecessary and illogical; the District has already paid for REDACTED to receive multiple evaluations, including the IEE, REDACTED neuropsychological evaluation dated February 11, 2016. The District maintained that it attempted to assist REDACTED 's learning disability with technology such as graphic organizers and scientific-based computer programs and has funded multiple additional resources such as a 1:1 aide and the BOCES REDACTED vocational program.

As per REDACTED, the REDACTED program was a more restrictive environment than REDACTED required to make progress (Tr. 419-421, 674).REDACTED regressed in terms of the social and emotional gains he had made and exhibited aggressive and antisocial behavioral tendencies that did not exist and/or were extinguished during his time in REDACTED High School. The District continued to recommend certain program recommendations and goals to address REDACTED’s areas of needs across the social and emotional domains. (Tr. 412-414, 769-771, 952, 955, 1054-1055)

Additionally, where the Parents ask that the CSE convene to identify, consider, and implement appropriate postsecondary needs, goals, and transition services for REDACTED, as well as recommending related services, the District asserts that this has been done. The District asserts that it addressed REDACTED 's postsecondary goals whenever possible, through IEP recommendations as well as programs such as the BOCES REDACTED vocational computer animation program. The District maintains that it consistently assessed REDACTED 's specific difficulties and recommended appropriately tailored services on his IEPs such as individual and group counseling, speech/language, special 15:1 core classes, resource room, support skills class, and parent training.

REDACTED opined that the Parents did not fully cooperate with the District's efforts to provide REDACTED with a FAPE. Rather, the Parents affirmatively obstructed such efforts through their repeated denials of District IEPs and their insistence on placing REDACTED in an inappropriate program. REDACTED stated that equitable considerations support full tuition reimbursement for the costs attendant to the child’s unilateral placement at the REDACTED for the 2015-2016, 2016-2017, and 2017-2018 school years. A review of the record confirmed the parents participated in each CSE meeting convened during the period at issue, provided any and all reports, evaluations, etc. of the child conducted during that period, made the child available for any recommended evaluations, fully considered the District’s offer of FAPE. The Parents provided sufficient notice to the CSE of their disagreement with the CSE’s recommendation and their intention to remove the student from the District prior to each school year at issue in accordance with the IDEA. Finally, the record is devoid of any claim or evidence to establish the parents engaged in any actions or other conduct that is unreasonable or in any way prevented the District from carrying out its statutory obligations.

A crucial factor is if the 7/21/15 CSE team predetermined the decision to re-enroll REDACTED in its REDACTED PROGRAM with its REDACTED PROGRAM and remove paraprofessional support from the student's IEP based on district policy. As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at*8-*9[S.D.N.Y.July 30,2015];see34 CFR 300.501[b][1],[3];8 NYCRR 200.5[d][1],[2]).

An important determination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; seeD.D-S. v. Southold Union Free Sch. Dist.,2011 WL 3919040,at*10-*11[E.D.N.Y.Sept.2,2011],aff'd506 Fed. App'x 80[2d Cir. Dec. 26, 2012]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]). Districts may "'prepare reports and come with pre-formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y.Jan.2,2013][alternation in the original],quotingM.M.v. NewYorkCityDept.of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]; seeB.K. v. New York CityDept. OfEdic.,12 F.Supp.3d 343,358-59[E.D.N.Y.2014][holding that"active and meaningful" parent participation undermines a claim of predetermination]).

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification,evaluation,and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322;8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (seeT.F. v. NewYorkCityDep'tofEduc.,2015 WL 5610769,at*5[S.D.N.Y.Sept.23,2015];A.P.,2015WL 4597545 at *8, *10; E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383[S.D.N.Y.2008]["A professional disagreement is not an IDEA violation"];Sch.for Language&Commc'nDev.v. NewYorkStateDep'tofEduc.,2006 WL 2792754,at*7[E.D.N.Y.Sept.26, 2006] ["Meaningful participation does not require deferral to parent choice"]). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents"had an adequate opportunity to participate in the development"of their child's IEP (Cerra, 427 F.3d at 192).

"[T]he IDEA only requires that the parents have an opportunity to participate in the drafting process'" (D.D-S., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], quoting A.E. v. WestportBd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006]; seeT.Y. v. New York City Dep't of Educ.,584 F.3d 412,420[2d Cir.2009][noting that the IDEA gives parents the right to participate in the development of their child's IEP,not aveto power over those aspects of the IEP with which they do not agree]).

To the extent that the parent's claim amounts to an argument that the district's adherence to policy is asystemic violation,an impartial hearing under the IDEA is limited to issues"relating to the identification,evaluation or educational placement of achild with adisability,or the provision of FAPE to the child" (34 CFR 300.507[a][1]; see 20 U.S.C. § 1415[b][6]). Generally, "systemic violations [are] to be addressed by the federal courts," as opposed to "technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators" (Levine v. Greece Cent. School Dist., 2009 WL 261470, at *9 [W.D.N.Y. 2009], aff'd, 353 Fed. App'x 461 [2d Cir. Nov. 12,2009]).

The hearing record demonstrates that, beyond simply applying the purported policy, that the CSE discussed and considered the student's needs in reaching the determination to recommend a program and placement for the student. As stated above, by 9th Grade and REDACTED’s entry into High School, the CSE recommended REDACTED’s self-contained REDACTED program. I agree with the Parent that REDACTED’s reading and writing, and social/emotional development deficits required immediate attention as his progress in the above areas were stalled and/or regressed. Furthermore, by, tenth grade, there continued to be a lack of progress. Despite receiving passing grades on his report card, I concur with Parent’s counsel that this single factor is not determinative in confirming progress. REDACTED’s lack of progress and increasing needs in his specific areas of deficit, including his reading, writing, and social/emotional functioning, became troublesome to his parents as their son was scheduled to graduate in two years.

I agree that the REDACTED class and the REDACTED program recommended by the CSE was suboptimal for REDACTED to make meaningful educational progress and was not designed to meet REDACTED’s unique special education needs.

REDACTED, REDACTED’s English Teacher during the 2015-2016 school year, failed to conduct baseline or other testing to determine his reading and writing proficiency. When the 2015-2016 school year began, REDACTED’s knowledge of REDACTED was limited to her review of his IEP. She was unable to explain why there were no reading goals on REDACTED’s 2015-2016 IEP. REDACTED stated that the District implemented the REDACTED program, a computer-based reading program.REDACTED had global deficits in reading, wherein, the main concerns were with his decoding, fluency and comprehension. Despite the fact that REDACTED’s reading was at least 3-4 years below grade-level, reading instruction via the REDACTED program was generally provided once per week with minimal direct teacher involvement and with an exclusive focus on comprehension. Additionally, classroom instruction was limited to whole group instruction and close reading in a small group when time provided.

Prior to the start of 11th Grade, the CSE met to review REDACTED’s educational program; despite the fact that REDACTED was promised to be admitted in a District-administered Art Program, it didn’t occur due to the scheduling of various REDACTED classes. Despite REDACTED’s social deficits, needs and the benefits attendant to a specifically designated lunch period, REDACTED was unable to have lunch in the cafeteria due to scheduling as the CSE recommended that REDACTED attend a BOCES-administered animation program. The CSE recommended the REDACTED self-contained 15-1 Program at the High School, Resource Room, small group counseling one time every other week for 30 minutes, individual counseling one time every other week for 30 minutes, and the services of a 1:1 aide while at BOCES.

REDACTED did not receive Assistive Technology nor 12-Month Services. Goals were provided in the areas of Study Skills, Writing, Mathematics and Social/ Emotional/ Behavioral; however, there was no writing/reading program or speech services provided to address his social/pragmatic difficulties.

As the 2015-2016 school year began REDACTED’s reading and writing difficulties continued without appropriate remediation. By October, 2015 REDACTED’s frustration was evident; a BOCES’ staff member reported that REDACTED brought a knife to school in an attempt to force his removal from BOCES.Thereafter, a team recommended that a reward system be added to his BIP in order to address such “outbursts”.The team also discussed REDACTED’s struggles in writing and recommended that the use of a word processor be added to his IEP. Special education services to address his reading, writing, social, emotional or behavioral difficulties were not addressed in the IEP.

REDACTED was evaluated by a psychiatrist; the observations, assessment and recommendations were shared with REDACTED, the District psychologist. The Resource Room teacher REDACTED confirmed that REDACTEDhas difficulty organizing tasks and activities.A litany of teachers reported that REDACTED often doesn’t follow through on instructors, fails to finish schoolwork, has difficulty organizing tasks, and fidgets with hands or feet or squirms in seat. Additionally, he is easily distracted and acts as if he was “on the go”; he very often has difficulty organizing tasks and sustaining attention. REDACTED copied the reports of the psychiatrist for her file; however, the District failed to convene a meeting or communicate with respect to the recommendations.

The parents contemplated a change in REDACTED’s placement to a program more adept at addressing his disability and areas of need, including but limited to a lack of progress in reading, writing, and his need for an additional year(s) of schooling. In the Fall of 2015 the parents visited the REDACTED, REDACTED was accepted and the parents notified the District of their decision to withdraw REDACTED from REDACTED Schools. The CSE met on January 28, 2016 to discuss to address the parents’ concerns and discuss options for retaining REDACTED in the District’s program. The CSE agreed to the parents’ request for an evaluation by the REDACTED Center.

The evidence established that REDACTED’s reading deficits were consistent throughout High School; no reading testing, program or goals had been conducted, recommended and/or implemented. I agree that the CSE put in place a daily reading program without any evaluations or rationale. BOCES was removed and the service of the 1:1 aide was to be discontinued as per the IEP. Parent maintained that there was no specific rationale, academic or otherwise, provided for the aide’s removal other than to meet the parents’ concerns. Once again, the team recommended that [REDACTED] attend the District’s GOAL program. The CSE increased the frequency of counseling support; there was no report or other documentation provided to establish that REDACTED’s needs in this area had changed in any way. Lastly, a skills-support class was added back into REDACTED’s IEP.

As the CSE failed to create appropriate goals to meet REDACTED’s deficits; the parents considered the CSE’s recommendations; however, they remained steadfast to unilaterally place REDACTED at the REDACTED effective February 1, 2016.

State regulation defines "specially designed reading instruction" as "specially designed individualized or group instruction or special services or programs . . . in the area of reading . . . which is provided to astudent with adisability who has significant reading difficulties that cannot be met through general reading programs" (8 NYCRR 200.6[b][6]). State guidance discussing specialized reading instruction notes that the term"specialized reading instruction"need not appear on anIEPand that such instruction may be provided through various means,including in aspecial class or as a related service ("Guidelines on Implementation of Specially Designed Reading Instruction to Students with Disabilities and Clarification About 'Lack of Instruction' in Determining Eligibility for Special Education," VESID Mem. [May 1999], available atHYPERLINK "http://www.p12.nysed.gov/specialed/publications/policy/readguideline.html)" \h http://www.p12.nysed.gov/specialed/publications/policy/readguideline.html).

In addition, the guidance specifies that the CSE should "consider what prior instructional methods and strategies have been utilized with the student to avoid reinstituting programs that have not proven effective in the past" and further indicates that "[i]nstructional methodology may be discussed at the[CSE] but is not specified on an IEP"(id.).

Further,in general aCSE is not required to specify methodology on an IEP,and the precise teaching methodology to be used by astudent's teacher is usually amatter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S.v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014], aff'g 2011 WL 12882793,at*16[E.D.N.Y.May 26,2011][noting the"broad methodological latitude"conferred by the IDEA]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257 [indicating the district's "broad discretion to adopt programs that, in its educational judgment, are most pedagogically effective"]). As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs" (34 CFR 300.39[a][3]), the omission of a particular methodology is not necessarily a procedural violation (seeR.B.,589 Fed. App'x at 576;R.E.,694 F.3d at 192-94[upholding an IEP when there was no evidence that the student "could not make progress with another methodology"]).

However, where the use of a specific methodology is required for a student to receive an educational benefit,the student's IEP should indicate this (see,e.g.,R.E.,694 F.3d at 194[finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]; see alsoA.M. v. New York City Dep't of Educ., 845 F.3d 523,544-45[2d Cir.2017];R.B.,589 Fed. App'x at 576;A.S.,573 Fed. App'x at 66[finding that it could not "be said that [the student] could only progress in an ABA program"]).

Based on the foregoing, the hearing record indicates that the CSE convened to develop and review the student's IEPs the school years in dispute and to consider the program to be used for instruction in reading. As stated above, the CSE should "consider what prior instructional methods and strategies have been utilized with the student to avoid reinstituting programs that have not proven effective in the past" and further indicates that "[i]nstructional methodology may be discussed at the[CSE] but is not specified on an IEP"(id.). I find that the District recommended the “same ole program” for reading instruction that wasn’t successful for REDACTED.

REDACTED’s reading deficits were consistent at the District; no reading testing, program or goals had been conducted, recommended and/or implemented. The CSE put in place a daily reading program without any evaluations or rationale.

Additionally, as per Parent, no specific rationale, academic or otherwise, was provided for the aide’s removal other than to meet the parents’ concerns. Parents maintain that CSE failed to consider and review the State’s criteria for the removal of the aide before removing the service. Despite all changes, the CSE recommended that REDACTED continue in the District’s REDACTED program.

The CSE increased the frequency of counseling support; no rationale was provided and there was no report or other documentation provided to establish that REDACTED’s needs in this area had changed in any way. Also, without any support or an evaluation of the need for the service, speech services were added. I agree with the Parent that REDACTED had deficits and needs in reading; that these needs and deficits were long-standing and consistent.

The district ultimately decided to recommend the REDACTED and REDACTED programs, which was not a type of methodology as suggested by the private evaluators or preferred by the parent. Although this does not support a finding that the district denied the student aFAPE; I find that these programs didn’t permit REDACTED to meaningful educational progress for the reasons as stated by the Parent’s counsel.

Accordingly,the IEPs developed for the student for the school years in issue not were reasonablycalculated to enable the student to make meaningful educational progress.

The REDACTED utilized a research-based approach to instruct children with significant disabilities. The program is individualized for each student, applying a therapeutic, collaborative problem solving model. The program allows for on-the-spot interventions and applies a social-thinking curriculum, teaching models of social interaction specific to children with autism. They utilize therapeutic interventions, social thinking, and small class settings allowing for individualized, direct instruction.

REDACTED entered the “REDACTED” at REDACTED in February, 2016. REDACTED reviewed a variety of data from different sources including REDACTED 's IEPs, psychological assessments, progress reports and input from the parents. REDACTED’s program had classes ranging from 4-8 students in a therapeutic environment with a special education teacher and teaching assistant. Upon REDACTED’s entry, he was assessed; the staff met regularly to discuss his strengths and weaknesses and how to build tools into his individual program; they conducted an FBA, developed a BIP. The REDACTED staff developed strategies to address his anxiety, social deficits, speech and language deficits, perspective taking, and expressive language. As the staff trained in the collaborative problem solving approach, a model was implemented throughout the course of the day; REDACTED’s needs would also be met through counseling and speech/language therapy.

During the 2015-2016 school year, Dr. REDACTED of the REDACTED Center evaluated REDACTED; her report was reviewed by the CSE at its meeting. The CSE convened without the evaluator, REDACTED, or staff from REDACTED; both a general and special education teacher were not present. I agree with Parent’s counsel that without the benefit of REDACTED’s that the CSE team was unable to understand, interpret and implement her recommendations. The Chairperson was unaware of the degree to which REDACTED recommended 1:1 instruction and “minimal transitions”, couldn’t define REDACTED use of “support”, and was uncertain as to what “low student-teacher ratio” meant. The Psychologist reviewing the report with the CSE noted that she didn’t understand what REDACTED meant by intensive special education support, low student-teacher ratio, or 1:1 instruction as needed. In her own words, she couldn’t imagine what REDACTED meant by “modified or individualized curriculum” or “classroom designed to minimize sensory and environmental distractors”. Despite the above, the CSE made changes to REDACTED’s IEP in anticipation of the upcoming 2016-2017 school year.

REDACTED recommended a low student-teacher ratio in a classroom that operated at a very slow pace to manage not only his deficits in working memory and processing speed, but the high frequency of off-task, work-interfering behaviors. She recommended 1:1 instruction as REDACTED required much behavioral management and minimal transitions throughout the day to reduce anxiety If transitions could be minimized. REDACTED also recommended a modified and individualized curriculum to meet REDACTED’s learning style, and to address his deficits in working memory and processing speed.

REDACTED suggested a curriculum embedded with life skills, a staff trained to work with students with autism spectrum disorder, and a learning environment that minimized sensory and environmental distractors. Significantly, REDACTED stated that REDACTED’s communications skills were commensurate with those of a 3 year-old child and that his functional and adaptive skills were substantially below expected levels and that he required services and skill-building in this area.

The CSE recommended changes in the absence of the individuals noted above, including REDACTED’s reclassification from Multiple Disabilities to Autism. Curiously, REDACTED’s diagnosis of Autism was readily known by the District for several years at that point.

On July 26, 2016 the CSE reconvened to discuss REDACTED’s 2016-2017 educational program; REDACTED was missing again. The REDACTED staff noted that while REDACTED continued to struggle in his deficit areas, that after five months he has transitioned nicely, displayed receptiveness to staff support, independently seeks out the counselor, and improved in his ability to identify his emotions. Academically, REDACTED made progress in each area of disability, including reading, writing and math, meeting ten of the eleven goals set forth in his IEP.The parents noted that with respect to REDACTED’s social/emotional functioning, that when he came home from school, he was no longer anxious and the frequency of removals from the classroom as a result of anxiety as well as the time spent at home addressing it had drastically decreased. Academically, the parents noticed progress in both reading and writing.

Notwithstanding REDACTED s recommendations, REDACTED’s failure to make progress in the REDACTED program over the preceding 2 years, and despite REDACTED’s progress at REDACTED, the CSE again recommended the REDACTED program for the 2016-2017 school year.At the conclusion of the meeting, the parents expressed their disagreement with the CSE’s recommendation and their decision to continue REDACTED at REDACTED for the 2016-2017 school year.

As the 2016-2017 school year came to a close the parents requested that REDACTED formulate an appropriate educational program for REDACTED for the 2017-2018 school year. On June 15, 2017 the CSE met to review REDACTED’s progress at REDACTED and formulate a program; the REDACTED staff again noted significant progress in each area of deficit. The Parents reported that REDACTED was hand-selected by REDACTED administration to design the yearbook cover for the then-outgoing graduating class. Every Friday afternoon REDACTED offered multiple clubs and activities for the students to participate in; for REDACTED’s part this would include the Yearbook Club, the Sewing Club, and the Art Club. (Tr. at 1239). REDACTED enrolled and attended an Art elective course each semester. REDACTED was in a work-study program once a week; he spent some of his time working off-campus at a bowling alley; escorted by REDACTED staff, the students traveled on the LIRR to the bowling alley where they would disembark and report for work at the bowling alley. They ate lunch together, re-boarded the train, returned to REDACTED, and continue with the school day.

Despite Dr. REDACTED’s recommendations, REDACTED’s failure to make progress in the REDACTED program over the preceding 2 years, and despite REDACTED’s progress at REDACTED for the past 18 months, the CSE again recommended the REDACTED program for the 2017-2018 school year. The parents noted their disagreement with the CSE’s recommendation and their decision to continue REDACTED at REDACTED for the 2017-2018 school year. REDACTED had earned a NYS CDOS Certificate and a NYS Regents Diploma at the end of the 2017-2018 school year. Additionally, he passed a Regents Exams in Global Studies, U.S. History, and English (Tr. at 1249, 1553-1554.

According to REDACTED, she watched REDACTED grow during his time at REDACTED.REDACTED went from being obsessive, perseverative, and shut down to being able to express himself and discuss topics outside his areas of interest; he became more accepting and understanding.

REDACTED, REDACTED’s counselor during his final year at REDACTED provided individual and group counseling, collaborative problem solving, and talk therapy, as well as peer mediation and push-in services in the classroom, electives and during lunch. She described REDACTED as a student who transitioned from an anxious, quiet and non-social student to one who was willing work on his social deficits and anxiety and showed improvement and growth in being able to problem solve with his peers and take others’ perspectives.

By the time of his graduation, REDACTED who taught REDACTED history and several electives; described him as a strong writer and storyteller, the best in his class. REDACTED was more responsible, less likely to get angry or upset with academic demands and was compliant; REDACTED took ownership of his assignments. He progressed and became a student who was conformable with his peers, tolerant, and accepting of others’ perspectives; he was flexible, more social and developed friendships.

REDACTED, REDACTED’s High School English teacher described a very therapeutic environment. (Tr. at 1364-65, 1367-69, 1370). REDACTED stated that when REDACTED first came to her in 2016 as a student who struggled in reading and writing, operating significant below grade-level; the topics produced great anxiety and refusal. By his graduation, REDACTED had passed the NYS English Regents; REDACTED described REDACTED as able to self-regulate and use his coping strategies; REDACTED was able to self-advocate, take ownership of his feelings and stay in class more. REDACTED was reading and writing independently and more accepting of the use of technology to meet his needs; in writing in particular, she noted REDACTED was less apprehensive, less anxious and overall, saw improvement.

I give deference to REDACTED 's recommendations and note that REDACTED’s failure to make progress in the REDACTED program over the preceding 2 years; and find that that the annual goals presented at the June 2016 CSE meeting could not be deemed appropriate because the goals did not state the level of prompting and support expected of the teacher or provider implementing the goal with the student. Additionally, that that the district "did not adopt or implement recommended IEP goals"

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

I find that the parent was intent on placing the student in a private placement and that they sought a private placement other than REDACTED High School which was rejected. A stated herein, after REDACTED began to attend REDACTED, the District recommended that he come back to REDACTED High School, where he had been making significant progress. The District continued to update REDACTED 's IEPs to reflect appropriate programs and expand on his goals at all times. REDACTED indicated that he was satisfied with the IEPs that the District had developed for REDACTED, both at the January 28, 2016 meeting and at subsequent meetings through the 2017-2018 school year, and that he would have accepted them if REDACTED remained in REDACTED High School. REDACTED indicated that the reason that he transferred REDACTED to REDACTED was not because of anything wrong with the District, but rather that the Parents simply wanted to place their son in REDACTED. I have determined that 1/3 of cost for tuition for REDACTED be the responsibility of the Parent based upon equitable principles as discussed.

Based upon all of the foregoing, including the record of proceedings and the testimony and documentary evidence submitted during the course thereof, the credible, reliable evidence produced at the hearing reveals (a) the District failed to meet its burden in establishing REDACTED was provided a free appropriate public education during the 2015-2016, 2016-2017, and 2017-2018 school years, (b) REDACTED’s unilateral placement at the REDACTED for the 2015-2016, 2016-2017, and 2017-2018 school years was appropriate, and (c) the equities favor partial reimbursement of the costs attendant to that placement to the parents.

Accordingly, Parents claim for the 2015-2016 school year is barred by the Statute of Limitations; Parent is awarded reimbursement for 2/3 of the cost of the tuition at the REDACTED for the 2016-1017 and 2017-2018 school

Dated:May 5, 2020

Gary D. Peters, Esq

Gary D. Peters

Impartial Hearing Officer

NOTICE OF APPEAL

Within 40 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 either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education.A copy of the rules in Part 279 and model forms are available at HYPERLINK "http://www.sro.nysed.gov" http://www.sro.nysed.gov.

20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j][i]; (See, Application of a Student with a Disability, Appeal No. 14-161)

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