Impartial Hearing Decision

New York State Education Department

- - - - - - - - - - - - - - - -X In the Matter of the Impartial Hearing

Brought b y . (the "Parent")

on behalf o - (the "Student")

Petitioners

-against-

The School District

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x

FINDrNGS OF FACT AND DECISION

FINDINGS OF FACT AND DECISIONS

Student's Name:

Date of Birth:

District: -)t·~o .

Hearing Requested By: Parent

Dates of Hearings: September 24, 2018

October 30, 2018

. -- . . .. . ~

November 2, 2018

December 5, 2018

December 19, 2018

Record Close Date: March 19, 2019

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 24, 2018

Esq. Attorney — Student

Esq. Attorney — District

Deputy Superintendent chool — District

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 30, 2018

Esq. Attorney — Student

Esq. Attorney — District

Deputy Superintendent, — District

School Psychologist — District

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 2, 2018

Esq. Attorney — Student

Esq. Attorney — District

School Psychologist — District

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBERS, 2018

Esq. Attorney — Student

Paralegal — Student

Esq. Attorney — District

Assistant Principal School — District

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 19, 2018

Esq. Attorney — Student

• — Student

Parents

Esq. Attorney — District

Deputy Superintendent, — District

Introduction: — District

This case was brought before me upon my designation by the — District

School District ("District") as an impartial hearing officer pursuant to the Individuals with Disabilities Act ("IDEA"), 29 USC §1400 [fj[l] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought b the Parent "Parent") on behalf of the student "Sttldent"), through her attorney, from the filin a Due Process Complaint dated June 29, 2018. ,-1 .. ·,· - , an attorney from the Law Offices of The Parent is alleging that was denied a free and appropriate education (FAPE) for the 2016-1 7 and 2017-18 school years and is seeking compensatory education. Based upon the District's closing brief, all other relief requested in the Due Process Complaint was withdrawn.

There were five (5) days of hearings in this matter. The hearings were conducted on September 24, October 30, November 2, December 5, and December 19, 2018. Extensions were granted in this case making the final compliance date March 25, 2019.^[1] Briefs were prepared by the parties and post hearing submissions were provided. A list of Exhibits is attached as Exhibit

A. The Parent and the Impartial Hearing Officer submitted exhibits.

Background

This case involved a thirteen ( 13) year old student.. entered the District's schools as a kindergarten student during the 2010-11 school year and continued to be educated by the District through sixth grade which was the 2017• l 8 school year. On July 19, 2018, the Parent withdrew the Student from the District.

~ 010-11 school year, the student attended - for kindergarten in a general education class with supports including a 1: 1 classroom aide. In March 2011,. . was referred to the CSE and was classified as speech and language impaired and was provided with resource room services, speech and language therapy, a 1: l classroom aide. and a behavior intervention lan IP . Tr. 51. For the 2011-12 school year. - was transferred to where . .epeated kindergarten and was placed 111 a spec.iaJ class and rece1Ved speech an language therapy, counseling, and a BIP. • remained at - for lht 2012-13 school year (first.grade and the2013-14school ear ·second ade . Tr.57 . . orthe2014-15schoolyear(thirdgrade), _ was accepted to and was placed in a special class (6:1) and received speech and language therapy, counseling, a BIP, and a 1:1 aide. D-32; Tr. 57. Although the CSE recommended the Student continue to attend Jerusalem Avenue for the 201516 school year (third grade) and developed an IEP for Jerusalem Avenue, the Parent asked for an

-s alternate placement. Packets were sent out and the Student was accepted to the Martin de Porres School, an approved New York State therapeutic school. Tr. 58-59. Prior to at Martin de Porres, and on the basis of an earlier psychiatric evaluation, was changed to emotional disturbance. Tr. 60-61.

Ills acceptance

classification

The Student attended the or the 2015-16 (fourth grade) and 2016-17 (fifth grade) school years an wasp aced in a 12:1 :5 setting with speech and language therapy, counseling services_, and a school-wide BIP. After the 2015-16 school year, the CSE recommended the Student continue at for the 2016-17 school year; however, the Parent asked for an alternate~ kets were sent out, however, the Parent ended up deciding to keep the Student at - for said year. The CSE meeting for the 2016-17 school year was held on May 12, 2016. D-5 ~D -6; D-7.

~ 7-18 school year, the CSE again recommended that the Student continue at

- for ~ e CSE meeting for the 2017-18 schoo~ was held on May 2, 2017. D-20; D-21. In August 2017, the Parent advised the District that- . Vould not return to -

Lhe 2017 -18 school year aDd- \'-' ::b provided with home instruction and related services pending an alternate placement. The Parent declined the counseling services but speech and language therapy continued. The Parent agreed to have the Student undergo evaluations at that time. D-30. In this regard, a C S E ~ was held on October 24, 2017 to review the Psychiatric Evaluation conducted by - -dated September 28, 2017 (D-32) and the Social History Update (D-36), and to confirm that the Student would remain on home ins · · an alternate ro am could be determined. D-37· D-38. A lications were sent t and the

After the psychiatric evaluation was completed (D-32), an application was also made

At the end of November 2017, the Parent advised the speech therapist and home instruction teacher to cease home instruction and speech. D-45; Tr. 116-117. As a result, the CSE set up a meeting to review the Student's program on December 13, 2017, however, the Parent hung up prior to any CSE input. D-48. The District, in December, then notified Child Protective Services (CPS) that the Parent was refusing educational services for the Student. Tr. 129-131; Tr. 458-459. Another meeting was scheduled for December 22, 2018, then January 17, 2018 and February 1, 2018; however, the Parent did not attend the December and February meetings and the January 17, 2018 meeting was cancelled since the District's attorney was not available.

In March 2018, the Parent called the District and asked to resume- home instruction services. Tr. 143-144. The home instruction agency was unable to reach the Parent for two weeks but services ultimately resumed at the end of March and continued until the Parent stopped service again around June 7, 2018. D-72; Tr. 158-159; Tr. 164-165.

In June, 2018, CSE meetings were initiated; however, the Parent did not agree to attend including a meeting for June 18, 2018 (D-620; Tr. 145) and June 21, 2018. D-64. Although the Parent did not attend, another invitation was sent out for a June 29, 2018 CSE meeting and the meeting took place. At that time the annual review took lace and no IEP was developed for the 2018-19 school year since the was not present. Tr. 151. D-63; D-64; D-65; D-66.

On July 19, 2018, the Parent formally withdrewlll from the District. D-67; Tr. 152.

The Parent filed a Due Process Complaint dated June 29, 2018 and I was appointed on July 16, 2018. Parent's Case The Parent cal.le~ I nd the Parent, and placed no documents in evidence.~ as the first witness.• has been a paralegal for five years and has also been a parent advocate for the past two years. Tr. 713 . • is familiar with special education as a result of_ , need for services and then took CLE courses on special education in order to assist other~ 714. ehas been working as- s advocate since February 2018, along with . . . . . He began working as a paralegal with - at that time as well. Tr. 720. • testified that he did not attend any meetings in December 2017 or January 2018 for the Student.^[2] is not sure when the meeting occurred, but stated that he did, in fact, attend a meeting by phone on or about February 2018. • said here was a district representative, the Parent, and £ f, :1s advocate, and the meeting did not go forward because the District stated that they needed their own attorney present if the Parent was represented by an attorney. Tr. 738.

-s The next witness was the Parent. said that - first received special education services in a second year in kindergarten. Tr. 763. The District made the request due to speech issues. Tr. 763 . • does not reealJ the District ever raising behavioral issues during kindergarten or having a discussion about a BIP. Tr. 763. The Student also received resource room but - doesn't remember when that started. - -ioesn't remember i:tal received counseling. Tr. 765. The Parent thinks • was a Lii I I ll for ~ e and then and then - Tr. 765. • moved from ~ o- ecause the District~ Tr. 766. • doesn't remember why they were recomme-nin it. Tr. 766. • doesn't remember if there was a need for a change of placement because o s behavior. Tr. 766. a doesn't remember being called in to the District because of be avioral issues at any time. Tr. 766.

The Parent does remember doing an intake at lling out the paperwork, and meeting with the principal and his assistant. Tr. 768. - does not remember there being a change in classification but- knows she was classified as needing speech. Tr. 768. She testified that no one ever ~ned to her what emotional disturbance as a classification meant. . _ stated that the reason- moved from to was because a security guard "roughed - up really bad a Tr. 769. • said thatsaid this was a regular thing and the Parent stated that• was never called. Tr. 771. • said the security guard was twisting her arm. Tr. 772. Ila met with the principal and they both agreed thatllllneeded to be moved. Tr. 772. The Parent testified that the District explained the security guard issue by stating "they needed reinforcements". Tr. 773.

The Parent testified that• was told that rovided year round schooling ~ retain her academics. Tr. 773. • does not recall raising any concerns with­ ~ ing ~ first year. Tr. 773. The Parent stated that there were never any behavior issues at home with- . before but_.ctid recognize a change in behavior after - .started there. Tr. 774. - never hea at - ~ s ing bad language. experiencing aggression, etc. before going to Tr. 775. 111111 never fought wilh !. .mother or . . siblings or used curse words before. Tr. 776. After being at - started fighting and using bad language. Tr. 776. The Parent stat~d that Ill raised • concerns at a meeting after II- first year. Tr. 776.

~ visited - but was not allowt'ci a tour nor was • allowed to ask questions. Tr. 777. • believes this was after the second year a Tr. 778. M brought a list of questions fromM r;:tnomey and was told they needed their legal team to answer the questions. The questions invo.lved the following: who were the other chil,dren in-class,

~

did they have IEPs, was '- 1

about

Ill allowed to have an aide, what was the class size, etc.

• •

sees a private psychiatrist. Tr. 781. The Parent stated that • asked • doctors placement problems and they said • is being discriminated against because of her school. Tr. 781 . . . stated that - has been out a whole year receiving­ - Tr. 782. • receives these-services in the library. Tr. 782. - gets two hours a day and • • therapy. Tr. 783. Ilk is going to be in for the 2018-19 school year and they ha,,e provided • with a placement which will start in January. Tr. 783; Tr. 784. They are also presently providing. . . with homebound services at the library. Tr. 784. In the District, although - had services, there were no books, workbooks, or homework. The instructors came with nothing. Tr. 785. In the new school district, the instructors come with work and give • homework. Tr~ ~ 5. The Parent testified that during la work sessions last year, they would just talk to - urtrelated to school. Tr. 785. • stated thatllll was not in school because they couldn't find a placement for • Tr. 785 .

.. ·,

The Pa.rent te.stified that - s issues are that • needs some time to learn and needs extra help. - said there are no behavior issues at home and the District labeled * as ~ d this is going to affect • in • next placement-.. Tr. 786. • has not h~d a CSE meeting at the new district to date. Tr. 780.

•

The Parent ackno wledged that there were issues with absences and missing homebound instruction. The Parent testified that they were transitioning and living trying to find ~ and it was difficult and the situation was what it was. ~ said she was ~ a said the Districtwas gracious enough to send buses to get the kids in - Tr. 789. '1111! said that in the second year at - gave • problems about going to school. Tr. 789. The Parent testified that . . didn't see any academic improvement or behavioral improvement at Tr. 789.

The Parent stated that she complained about the home services in the District; however. the District didn't address it.a was concerned that there were no workbooks with the instruction. Tr. 790. ....Jhe Parent describe- as a young- that wants to learn, socia lize .:i.n d be in school bu~ lcnows thatA has to work on things. a strength is math, but- had difficulty because a can't read well and this affects word problems and problem solving. Tr. 791.

The Student has been out of school for a year and a half. There hasn't been any change in behavior. The Parent stated that "• s a normal child with normal regular behavior problems. Tr. 792. W. stated that there are other children in•

h~ ~eceiving home instruction. Tr.

792. She has grown children, a . year o.ld,a ,ear old,_ and a year old. Tr. 792.

The Parent stated • doesn't remember ever being called when llll was absent. or regarding anything else dming the 2015- 16 or 2016-1 7 school year. Tr. 811. 9lll! doesn't remember m1111 attended parent-teacher conferences. Tr. 813. 111111! recalls being at two times; once for a play and once for the intake. Tr. 813. • does not recall receiving re 0 1t card for the 2015- L6 school year. D-12. She does not recall requesting a screening after s first year at at TEP meeting dated May 2, 2017 afterl l ls second year not recall the CSE making a recommendation for -

at••••••

D-21 . She does not recall an

to continue at

Tr. 814. She does

for sixth grade.

The Parent testified tha~ did not go back to because • wanted her to go to a school where. . academics. and behavior would improve so • asked the District to look for another school. Tr. 817. ~ doesn't recall receiving the progress reports or the report card for the 2016-17 school year. Tr. 818. The Parent determined that the Student was not making progress by picking up a workbook for the grade level • should be in and seeing that - coLudn't do any work i:n it. • then put a reading bo0k in front of - and • couldn't read it. Tr. 820. The Parent • . stified that • based • lack of progress on the fact that the instructors working with stated that -..,,as not at • appropriate level. Tr. 821.

The Parent testified that - signed a letter in September of 2017 stating tballllllwould not be receiving counseling services while on home instruction but didn't remember why she didn't want them provided. Tr. 825. When asked about whether received counseling or medication from her private psychiatrist, the Parent testlfied that time with - psychiatrist is private health information. Tr. 830. The Parent indicated that has had a psychiatrist for about_ ,ears. Tr. 831.

The Parent recalls taking ~ tQ- o be evaluated and receiving a copy of the report. Tr. 833. a stated that it was the District's evaluation. • indicated that sa1$poke to the psychiatrist and gave him information about~ s social behavior, but did not have a conversatio~ er lilafinished the evaluation. Tr. 836. ~ does not remember discussing ~ mmendations regarding- with him. Tr. 840.

The Parent did not remember receiving meeting notices for CSE meetings in October

2017. D-35 . ._.doesn' t remember signing the form indicating • would attend. Tr. 841. also does not recall attending the meeting by teleconference and discussing that the Student would be on temporary home instruction until an alternate placement could be found and that updated testing and evaluations would be done. Tr. 842. - also didn't recall the CSE recommending that a packet be sent to the ~ an Tr.

842. The Parent does not remember receiving a copy of the IBP or the Prior Written Notice. D-

38. iilJ stated tha~ had her mail sent to her PO Box. Tr. 844. a doesn' t recall signing a permission slip to release information to the md rograms but stated that ~ gnature is on the document. Tr. 845. * also does not recaU the Psychological evaluation being done in October 2017 while the Student was on home instruction. D-43; Tr.

846. ~ also does not recall telling the home instructor and speech therapist not to come anymore and that the Student is done with home sessions. Tr. 847; D-45. • stated that "This was last year when we were- and transitioning to I don't remember. It could have been anything that happened .. .I don't remember is my testimony and my final testimony". Tr. 849. The Parent stated that_ . doesn't remember why* didn' t want home instruction. Tr. 858. 9tlt stated that "[. -didn't] know why it happened at the time but it happened". Tr. 859. She testified that lia<lidn't remember if* stopped bringing. . to the library from November through April. Tr. 850. Further. • di<l not recall CPS contactingllll conceming Wlr denial of home instruction fo1. . . . during this period of time. Tr. 850. The Parent did not recall receiving a letter from - regarding a meeting scheduled for December 13, 2017 to discuss . .s program and the cancellation of the home instruction. Tr.

852. ii9 doesn't recall ~ a n d hanging up the phone at the December 13th meeting nor receiving the letter from ~ regarding said meeting and the events to date. Tr. 853; D50.

The Parent doesn't recall who is and does not recall receiving correspondence from • on December 15, 20 17 stating that- -should call to arrange a

· at Tr. 862. She did, however, testify that she did go to a screening at

Tr. 862; D-51.

The Parent also stated that * does not recall receiving a meeting notice for a CSE meeting January 17, 2018 nor receiving- due process rights. D-60; Tr. 863. 8M also doesn't remember receiving copies of the Procedural Safeguards Notice from the District. Tr. 863. She doesn't remember appearing at the January 17, 2018 meeting and indicating that • lawyer was on the phone. Tr. 864. M doesn't remember when'l!Mt retained him a n d ~ January 17, 2018. Tr. 865. • doesn't remember receiving a letter from ~garding - - - • and does not know who a is. Tr. 865. • does recall scheduling a ~ Tr. 866. . _ also does not recall receiving a second letter from ~ egarding a screening scheduled for February 16, 2018 nor the form • wanted her to fill out. Tr. 868-869; D-58. • also does not recall the District sending - the same form. D-58; Tr. 869. She does recall going to for the screening but does not - fusing to fill out any form. Tr. 870. ~ stated that • would have definitely filled out evelopmental history. Tr. 870.The Parent does not recall receiving a meeting notice for a February 1, 2018 meeting sent by mail and e-mail. Tr. 866-868.

The Parent does not recall a time when home instruction services were reinstated for the 2017-18 school year nor doesW. recall bringing the student to the library for the instruction. Tr.

878. ~ does not recall receiving an e-mail from- dated April 24, 2018 indicating that the agency for home instruction was trying to contact her for scheduling purposes. Tr. 879, D-62. The Parent stated that through the evidence, • can see that it was sent to 'Ille-mail address and although .... didn' t remember it, it appears that it was definitely sent it to illl Tr. 880.

• does not recall getting an annual review notice for a CSE meeting on June 18, 2018 (D-63), or one for June 21, 2018 (D-64), or one for June 29, 2018. D-65. Although there is no response in the record for the first two meetings in June, • responded "That is fine" for the June 29th meeting but doesn't recall this. Tr. 885. The Parent testified that • moved in June and was no longer in the District. Tr. 888. She is in d is having the first CSE meeting on Friday. Tr. 888. She registeredtlllll in ·n September 2018 and has been receiving home instruction. She stated that s using the District's IEP which provided for home instruction. Tr. 889. The Parent does not recall an e­ mail from - co11finni11g a withdrawal of- from the District on July 19, 201 8. Tr. 890; D-69.

The Parent testified that in addition to • . ,• · other~ as also receiving home instrnction from the District. Tr. 891 . • later clarified and said * was receiving home instruction from the - because she. wa~ older than'III The Parent also did not recall that there was a gap in home instruction fortlllllll Tr. 893-894.

The Parent stated that • was aware that there was a time in the 2017-18 school year for grade six that the Parent sought to put • . in and that • had been accepted there. Tr. 894. • did not place I• there because • stated the District offered to pay for only a month or two. Tr. 895.

With respect to the the Parent testified that they had paperwork for • to fill out and a had questions. Once they didn't answer • questions. • said the meeting was over. Tr. 907.

The address on the IEPs was the address at the hotel but the Parent testified that that was not where the mail was sent. It was sent to her- Tr. 909.

District's Case

The District called d~ dplaced seventy-eight (78) documents in evidence. D-l-D-78.

The first witness forthc District was Eais currently 1RJ I t for the District. Prior to that she served as director of special education and before that, a school psychologist. Tr. 40. She has certifications as a school psychologist, school principal and district administrator. The responsibilities as deputy superintendent with respect to special education involve supervising the special education teachers and related staff personnel to implement Part 200 of the Regulations within the District. Tr. 41. - will attend CSE meeting when asked by the chairperson and is responsible for the practices and procedures utilized in the District with respect to special education.

is an elementary school district with students ranging in age from • • Tr. 41. There are five schools withln the District. Tr. 42. The continuum of special education within the District includes a well developed response to intervention process where academic intervention support and related services are made available prior to entering the CSE process. Tr. 43. When students' difficulties continue after the response to intervention process, they are then referred to the CSE. The options within the District include resource room, consulting teacher support (push in model), expanded resource room support which is a consultant teacher model and includes a push in program for half a day with a general and special education teacher with a para, and self­ contained classroom (12:1:1, 8:1:2). Tr. 44. They have staff who can handle ce1tain behaviors including a certified behavior specialist on staff, however, they are not a therapeutic setting and if a child has more significant needs and also requires some participation in medical protocols, that is beyond their scope. Tr. 44-45. There are other districts that have classes for students with emotional disturbance, so they try to explore those options and also consider BOCES programs and other state approved programs. Tr. 45. They try to keep children in the least restrictive environment and keep them in the District, but that is not always possible. Tr. 46.

- is familiar with the Stud~ this matter. - first became familiar with- - when ~ ntered kindergarten at- ~ as the building psychologist at the time. Tr. 4 7. - entered the school as a general education student. • quickly had difficulties with a behavior and managing her attention and willingness to participate in the instruction that was going on in the classroom. Tr. 47. It impacted • learning and also the learning of the other students in the classroom. Tr. 48. The resources of the building were put into place to help • and her teacher. however, • behavior escalated and on a number of occasions the class had to be removed from the classroom. Tr. 48. On one occasion.• destroyed a classroom and • - was brought in to discuss the incident. Tr. 49.

As a result of the foregoing, the Student was referred to the CSE during that school year (2010-11 ). Due to • cognitive functioning level, • was kept in a general education classroom with an aide and other supports and services. Tr. 49. As a result of their evaluation, the District determined that • had a significant speech and language issue that could be contributing to low frustration tolerance and acting out behaviors. Tr. 50.

For the 2011-12 school year, the Student was recommended to attend - since program recommendation was for an inclusive setting. Tr. 52. Although the CSE did not recommend it, the administrative team recommended that - repeat kindergarten because there was a feeling that Ilahadn't benefited from being exposed to the curriculum for kindergarten.

Tr. 57. Accordingly. . attended - for tl~e 201 1-12 school year and repeated kindergarten. Tr. 52. • also atte~ for first grade for the 2012-13 school year.

Although she had positive behavior support services, a paraprofessional and the school psychologist had a BIP in place, her unsafe behaviors continued and on occasion the class had to be removed so that • situation could be brought under control. Tr. 53. - vas made aware oMlabehaviors since- had become the director of special education for the District in 2011. Tr. 55 . . . was also aware of the TEP recommendation fo~ to attend - for her third grade year (2014-15), and their recommendation for • to atten for the 201 S- l6 school ear (fourth grade). Tr. 57. - pointed out that the move from to was at the Parent's request not the ~ Tr. 58. - met with the Parent at the time and !8felt the staff at lllllllllllllllwere not able to handle- . and. .wanted a different placement. Tr. 58. The CSE sent out packets and got a placement for the Student for the 201 5-16 school year (fourth grade). Tr. 59.

- estified that s a state approved private school. They take students with ADHD, emotional disturbances and also learning disabilities, however, the students, r ~ f i c a t i o n have combined behavioral difficulties. Tr. 59. stated thatlllllllllllllllis a therapeutic program in that they have a lot of mental health professionals on staff but do not work with medication. Tr. 67. When the District sends students out of District, they visit and talk to personnel at the schools. Bath• • • • • and and schools lik have a highly structured routinized day that is very predictable for children that have difficulties, children know what the rules are and they can count on consistency. Tr. 69. The staff is special education trained personnel, e.!£~,!;ienced in making accommodations and modifications which is imp01tant for a student like . . with a low frustration level. In addition to individual counseling sessions, they have a schoolwide approach to the mental health of the students which makes it a therapeutic setting. Tr. 69. Although - Jas not visited • has spoken to the staff and administ r ~ e r District staff have visited. Tr. 70.

- classification changed from ~ u a g e impairment to emotional disturbance after a psychiatric evaluation by- It occurred before . . eotered ­ - r. 60. The Speech and Language Progress Summary dated November 25, 2015 (D­ ~ t she continued to have difficulties with Speech and required support specifically in the areas of syntax, listening and reading comprehension. Tr. 63. The Student's Social Emotional Update dated December 10, 2015,which was prepared by indicates tha~ is making progress but it is still inconsistent including a low rustrat1on eve. Tr. 64.

tated that indicated thatllll: is a cognitively low functioning intact child who understands what9111neetis to do but isn·t always able to do it. When l"lllfrustration gets the better of• ~ an act out verbally and physically. Tr. 65. At did not act aggressively in term of destroying things, but • had difficulty with persons and staff. Tr. 65-66. Based on these reports, it appears as if - continues to need this type of program, it is appropriate, and - is making progress. Tr. 66. - stated the fact that • has internalized what - needs to do although is not yet able to do it with any kind of consistency, shows progress. Tr. 66. ~ a result of Parent's request. Tr. 76-77; D-13. This was not what the CSE was recommending, it was Parent's decision. Tr. 77. T ~ t h a t was scheduled at - was cancelled by the Parent. Tr. 78; D-14.~ oes not know why the screening was cancelled but • stated that the Parent cancels and reschedules many meetings. Tr. 78. Another screening was scheduled to take place on September 23rd, however this also did not take place. D-15; D-16; Tr. 79. The District then received a letter from indicating that the Parent was offered a screening but declined the offer. Tr. 80; D-18.

- testified that the Student's report card for the 2015-16 school year indicates that,.. was making progress in most academic areas from where • began. Tr. 75. The area that continues to be a weakness for a is ELA, which is not surprising given - speech and language issues. Tr. 76; D-12. In the comments section on the report card it indicates that the Student is not only making _progress in - academic areas but also in • behavioral areas. D-12. - stated that the progress • is making behaviorally impacts on• learning. Tr. 76.

Based on review of her report card (D-12) and the Social Emotional Update (D-2) and the Speech and Language Evaluation (D-10), there would be no reason to change the Student's placement after her fourth grade year at Tr. 80. Based on • review of the documentation and what• heard from the school,~ as making academic and behavioral progress. Tr. 81.

The Student ultimately returned to or the 2016-1 7 school year. Tr. 81. Based on a review of her Progress Report for goals and objectives for the 2016-17 school year (D-22). estified that • was _progressing steadily in all of her goals. • stated that two were achieved and one or two were progressing gradually and most were progressing satisfactorily. Tr. 82. Her 2016-17 (grades) report card (D-23) also indicates that she was making progress. These reports show thatlllais meeting basic goals and in two areas ..-ias 4's. She stated that "when you have a child that has a significant disability and they are far away from the average to begin with, when they are making progress it doesn't necessarily mean they are closing the gap toward their appropriate grade level, it just means they were progressing towards their goals so they are talcing steps in the right direction". Tr. 83-84. This report card represents classroom goals from the teacher. Tr. 84.

the 2017-18 s- hool ear the CSE recommended that the Student continue at _

Tr. 85; D-21. tated that when a child is making progress-towards their IEP goals and on their report card academically and behaviorally, there wouldn't be any reason to change placement. Tr. 86. In the comment section on the IBP for the 2017-18 school year, (D-21), it indicates that the Parent was agreeing to the school year program but declining summer services. Tr. 86. The Parent then chanoed her mind over the summer and decided -

-o would not have the Student return to or sixth grade. Tr. 87. that the Parent indicated that the school bad students tougher than ~ to curse and . _did not want go back. Tr. 87.

Also,

Subsequent to this there was a Proposed Amendment to the IEP without a Committee tated

Meeting dated September 5, 2017. D-25; Tr. 88. Since the Parent did not want to continue in, . . current program. and essentially now removed • from the program, immediatel~truction in place. The Parent also requested that a packet be sent to ~ nd - - - - Tr. 89: Tr. 90. Although • would continue to rece ive - related services, the Parent declined the counseling. D-25. A form was sent to Parent from- for Parent to fill out (D-27), however, the Parent never filled it out. Tr. 90. In connection with • decision to not send - back to for the 2017-18 school year, _..igned a document to this effect on Septembe - 8. The District also sent out a document requesting a s c ~ e n t at on September 11, 2017. Tr. 92. Her knowledge o f - - - - i s through personal observation. It's a ~ r ograrn. The staff has psychiatrists and they are affiliated with a counseling center and medications are provided when necessary. Tr. 93.

In order to apply to ~ c evaluation was necessary, so was evaluated on September 28, 2017 by - - - - D-32; Tr. 93. The Parent had agreed to the psychiatric. Tr. 94. - continued the diagnosis of attention deficit disorder and also a mood dysregulation disorder and indicated that her previous issues which led to the emotiona-1 disturbance classification were still )art of• profile. Tr. 95. recommended a Tr. 95. They have psychiatrists, special education teachers an menta hea professionals and children are transported there on a daily b a s i s ~ involve the parent in the counseling piece. Tr. 96. They discharge the student afte~ with a recommendation for the District regarding what would be an appropriate recommendation for the student. Tr. 96. - h a d put the Student on a trial of medication and the Parent had indicated that the medicine was initially helpful but then • indicated that - .\vas workfog with a psychiatrist and • was stopping the medication. Tr. 97. When . . . - spoke t~ ..._dvised her that the Parent agreed to the Tr. I 00. While this was going on, R :vas receiving home instruction. Tr. 10 I . in this regard session ootcs were. provided for -s academics as well as lllspeech from New York Therapy. Tr. 102.

The CSE then held an IEP meeting on October 24, 2017 to consider ­ evaluation. D-3 7; Tr. 103. In the comments section, it stated that "The CSE recommended that packets be sent to t h e - s w e l l as ~ he Student would be screened once the packets are received. The• - understood th_ . would need to bring the Student to the screening. T h e ~ a s in agreement with the outcome of the meeting." D-37; Tr. 103. It also indicated that certain outside testing would be conducted. Tr. 104. Parent agreed to the release of information to ~ d a packet was sent in this regard. T h ~ t a request for special transportation signed by the Parent. D-46; Tr. 105. At this time-- lbelieved the fami~s no longer living in North Bellmore but had been relocated - Tr. 106. As a result, - was receiving home instruction at a library in Tr. 106.

In order to transition to middle school, the District would have to exchange information with the - Therefore, co.ch year they set up joint meetings when the students will be transitioning to middle school with both the elementary and middle school CSEs present. Tr. I 07. The Parent signed a permission to release information in this regard in October 2017. D42; Tr. 107.

A Psychological Evaluation was performed on October 27, 2017 as part of the Student's triennial. Tr. 109; D-43. Even though the Student would be in a different district for the 201819 school year, if the t r i e ~ came up during the year, it gets done by the District. Tr. I 12. As a psychologist, ~ testified tha~ perfo rmed in the average range of cognition for her age. Her score on the verbal comprehension was in the low end of average due to her speech and language difficulties. Tr. 110. Her cognitive functioning stayed intact throughout her education. Tr. 110. In terms of her Educational Evaluation dated December 27, 2017 (D-44), the District does not give weight to grade equivalent or age equivalent since they are not valid statistics. Tr. 112. They instead use standard scores and percentile ranges to determine the level of functioning and any progress or lack thereof. Tr. 113. - tated that based on • review, 1-.· funclioning is below average range and lill has always been significantly below average. Tr. 114. - .stated that • · goals are designed to have tllr make progress and that they can expect a year's progress in a year's time but when you're a standard deviation and or half below the mean to the ~ 1 population even though you make progress, the gap still remains. Tr. 115. Therefore, il~received a graded score in reading in November, 201 7 and if 1111 had received the same score the previous year, ....would have made progress because, . . is being measured against a population a year older. Tr. 115.

There crune a time during the 2017-18 school year where the Parent discontinued - and for the Student. Tr. 116. The agency notified the District of this in November 2017. D-45; Tr. 117. In order to get services back in place, the District sent a letter to the Parent advising ~ fa CSE meeting on December 13th to review lllls program. They advised Mir Lhat they were av,.rare that • requested a cancellation of services and since this was on the Student's IEP, a scheduled program review meeting was necessary. Tr. 117; D-46. The CSE meeting did not take place on December 13, 2017. ~ o c c u r r e d and Parent appeared by phone, Parent became upset and hung up. Tr. 122. ~ tated that someone stated that "the purpose of today's meeting is" and the Parent began yelling about how upset Ila was about various things and hung up. Tr. 123.

The Student never went to-

·- ari

because the Parent d i d ~ screening as she had decided it was not an apprnptiate school fortlllllll Tr. 120. at the District offered to go with the Parent to the 'i _ atlminil:itrator e screening and actually drove out there but the Parent didn't show up. A second date was scheduled but Parent had already indicated ahead of time that !WI wasn't coming. Tr. 129; D-49. also tried to set ~ n g dates with the Parent but none had materialized. Tr. 127. There is a letter from - - Principal of indicating that a was trying to reach the Parent for screening and could not. Tr. 136; D-55. The principal then sent another letter on February 6th requesting a screening on February 16, 2018. D-57. The District sent the Parent t h e ~ a developmental history to fill out for the school. D-58; Tr. 138. It was also sent to ~ i s client: Tr. 138; D-58. There is also a letter from the assistant principal • - -dated February 16th stating that the Parent did come but refused to fill out the paperwork in order to conduct the screening. Tr. 141; D-59. poke to following this and was told that the Parent came an hour late and refused to fill out the paperwork. Tr. 142. In this regard, they also copied the attorney on the questionnaire packet. Tr. 276; D-58. stated that the Parent's failure to complete the packet and answer questions showed a lack of cooperation. Tr. 276.This was memorialized in the Prior Written Notice dated December 13, 2017. D-48. There were numerous emails and reach outs to the Parent requesting the screenings, etc. D-52; D-55. tated that this much outreach isn't typical but the District was "highly motivated to get-into a placement that was appropriate to meet • needs and that would also meet t h ~ t , address Parent's concerns and we wanted to do everything to try and make that happen." Tr. 276.

On December 24, 2017, - s e n t a letter to the Parent confirming the status of everything that had occurred to date. Tr. 126; D-50. They sent out this letter because the Parent was not going to any of the placement possibilities and there was no home instruction and the District had a responsibility to provide instruction to the Student. Tr. 126; D-50.

Since the Parent did not respond to any of the communications, the District placed a call to CPS.

Tr. 129. They did so because they had a child that was out of school for a period of time and they have an obligation to take steps to make sure that children are safe and are being educated.

Tr. 130. They contacted CPS in December. Tr. 130. CPS took the case and it was transferred to - a psychologist in the District. Tr. 132.

Another CSE meeting notice was sent to the Parent regarding the transitional meeting between the Parent, the District and ~ o r January 17, 2018. This was sent by email since Parent indicated that tla was having difficulty getting mail through illaP.O. box so gave email address. Tr. 33. Both CSEs emailed it to WIiiand the District put it in - book bag. Tr. 137; D-57. The day of the meeting, the Parent stated that she was g g ve er attorney on the phone. Tr. 134. The District has a practice of having an attorney present if the Parent has one and so does - Tr. 134. The District tried to reach out to their attorneys but there was no one that could appear. Accordingly, the meeting did not take place. Tr. 135.

Another meeting notice was sent out to hold a CSE meeting on February 1, 2018 in coordination with the District and - w i t h attorneys. Tr. 136. The meeting was cancelled since the Parent did not appear. Tr. 13 7. There was no Prior Written Notice because the meeting was not held.

There came a time in mid March when the Parent agreed that home services should be reinstated and called the office regarding same. Tr. 143-144. - d o e s not know what CPS's involvement was with the Parent at the time. Tr. 144. On April 24th, - e n t an email to the Parent indicating that , the agency doing the home services, was unable to reach the Parent regarding scheduling of services. Tr. 144. tated that she reached the Parent and she said neither her email nor phone changed. The Parent told ..- to have the agency try again and services resumed. Tr. 145; D-62.

Another CSE meeting was scheduled for June 18, 2018. D~~ This was another attempt to do the annual CSE meeting and transitional meeting w i ~ Tr. 146. The meeting for June 18th was cancelled because the Parent did not RSVP to the meeting notice. D64; Tr. 146. They needed to hear from • because of the presence with the attorneys and she never responded. Tr. 146. No communication was sent to the District in this regard nor was a phone call made. Tr. 147. It is typical practice that parents respond. The meeting was then rescheduled for June 21, 2018. D-64. The Parent did not attend the June 21st meeting. Tr. 149. A new invitation was sent out for a June 29th meeting. D-65. An annual review was held at that time. Although the Parent had responded ''that's fine", she did not attend nor did her attorney.

Tr. 150.

On June 29, 2018, the annual review took place with the District, however, the transition meeting did not take place. They documented that they had the annual review and that no changes were made to the IEP since the elementru school year was over. No 2018-19 IEP was written. Tr. 15 l. The - advised Uial the Parent was moving. Tr. 151. - found this out when they called o find out if they wanted to come to the meeting. Tr. 151. They sent a Prior Written Notice to the Parent following the June 29, 2018 CSE meeting. D-67; Tr. 152.

Following this, the Parent filed an Impartial Hearing Request. IH0-1. A resolution session was initiated and an offer ofresolution was made to the Parent. Tr. 155. The Parent did not accept the offer ofresolution. Tr. 155. On July 19, 2018, the Parent sent a letter withdrawinglln- children from the District. D-69; Tr. 155.

With respect to home services, the child received make-up services for each date when the child was absent. Tr. 161. When the Parent refused services, the District did not provide makeups because the child wasn't being made available to them. Tr. ~ u n e 7, 2018, the Parent cancelled all sessions because they were moving. Tr. 165. - stated that it was their intention to provide services through the end of the 2017-18 school year. Tr. 165.

In comparing to the - stated that was a more therapeutic setting. It has a psychiatrist on staff and is a self-contained special program for children who have emotional disturbance. Tr. 217. . eally focuses on the learning disabilities and the impact they have on the emotional issues. Although there are students with emotional disturbance, it is not the whole profile. Tr. 217. l FlJ!'JI! II • • • • •• • •

• • •ccept placement at you need to use their provider, Tr. 255. _ ,estified that she spoke lo to set up the screening. After it was over, 8 told her the Parent showed up late, refused to fill out the paper work, and wouldn't answer questions. Tr. 255.

A classification of emotional disturbance means that the learning difficulties that the child has do not completely describe the child's dif~ctioning. There is also an emotional and psychological component. Tr. 220. ~ e1ieves that the Student also has speech and language difficulties and learning difficulties as well. Tr. 220.

On the Wexler exam, _ score fell in the average range including a full scale IQ of . -would be the- ercentile. Tr. 227, D-43. The Student's scores an~ e mean and that is significantly delayed. D-43; Tr. 230, She also stated that the same scores year after year could show progress because the age group that the new scores are being compared to are a year older than the aged scores previously so even if the score remains the same, the child has made a year·s progress. Tr. 231. Although a year's growth is what you expect from a child, this does not close the gap. Tr. 231. Based upon the fact that her cognitive levels are average, the emotional disturbance is the primary presenting problem. She also has significant delays, Tr. 265. She also stated that the

•r Student's IEPs (D-6, D-21) clearly demonstrate • · needs and abilities in connection with all of other special education needs. Tr. 264-269. With respect to procedural safeguards,111 stated that procedural safeguards go out at an initial evaluation, an annual review, and if there is a disagreement at a meeting parents are advised of where to look in the procedural safeguards for their due process rights. Tr. 260.

At the time the Parent brought to the District her concerns about home instruction services~ ontacted the agency and spoke to the provider about this. Tr. 914. . . advised · that he was working on both the curricular areas (primarily reading and math) and...- IEP goals and was using curricular material appropriate for Milt age. ~ stated that he provided the Student with dittos and other materials that he pulled in order to address her needs. Tr. 920. • slated that - was coming fairly consistently to the library and was cooperative and participated in the instruction. Tr. 915. - stated that the provider session notes and purchase orders support what the provider stated he was working on. D-33; Tr. 915.111a verified that the same home instruction provider that was working with the Student in the Fall was working with her in the Spring and this was true of the - provider as well. Tr. 917.

The ne>,.1 witness was- She is a school psychologist at School since 2016. Prior to that time she was at - and bas been in the since 2005. She is a certified school psychologist. She has been a CSE chairperson since 2005 and also administers assessments.

She is familiar with - sincalk was at - from September 2010 to January 2011 until • went on maternity leave . 1111 was a kindergarten. Tr. 311. TI1ere were a few issues at the beginning of the year that • consulted with teachers on, however, most interactions involved the social worker. Tr. 312. When e came back from maternity leave, the Student was then ~ and then at and a: did not have contact with •·· Tr. 336.

For the 2015-16 school year,a chaired a CSE meeting forl l l since ~ home school. Tr. 337. • was transitioning from to - at Parent's request at the time. Tr. 337. Both schools offer a therapeutic setting and schoolwide management systems, additional behavioral suppm1s and counseling and other related services. T r. 33 8. ~ Ill tated that an and- were developed in kindergarien when behaviors started to increase (February 201 ~ a s written at by her behavioral consultant. Tr. 339. She recalled that - pai1icipated in the meeting. Tr. 313. They indicated that the school had a highly structured program with behavioral support and academic support in a small class size and provided counseling, other related services, and academic services to support student's needs. Tr. 314. The reason an out of district placement was being considered for4lllllwas because the Parent was unhappy with and wanted to consider other placements. This was an alternate placement that could similarly address...,'s emotional and academic needs. Tr. 314. Both the Speech and Language Progress R e ~ Social Emotional Update (D-3) were reports taken during . .,s first year at - Tr. 315. These documents were utilized at la annual review for the 201516 school year to discuss her functioning and make a plan for the following year. Tr. 316. In the Social Emotional Update (D-3), which was dated December, 10, 2015, the provider, - tated that..rwas working with. . in weekJy counseling sessions and although . . presents with significant emotional behavioral difficulties, 11111 was making progress. • was engaged in the counseling process, was able to form relationships easily with - peers and was able to make significant improvements in regulating • mood since . . was experiencing fewer outbursts. Tr. 317. The counselor was working with - to express I r· 1ppropriately regarding behaviors with staff and peers including aggressive behaviors when - didn't want to participate in certain academic activities. - . Vas learning strategies to cool down. Tr. 318. • stated that according to the therapist, - was making progress from September until December but continued to need social emotional supports. Tr. 318.

isited - at the site during the 2015-16 school year and observedallin a physical education class and in a small classroom. - seemed happy and able to function and do what • needed to do within those settings. Tr. 319. The school indicated that they were using a schoolwide positive behavioral support system and that was responding to it. With respect to • report card for the 2015-16 school year (D-12), oted that the teacher's comments were positive and noted growth between periods one, two, and three. Tr. 320.

For the IEP for the 2016-17 school year, llllllllwas the psychologist and chairperson. D-6. The social worker had stated that the Student was making progress and there were fewer outbursts and the therapist also had a positive report and indicated • was using her language a little more effectively and the therapist ~ e c r e a s e her services. Tr. 321. The Parent and several staff people from - - - - were also present.

Tr. 321. The staff from tated that the program supports children socially, emotionally, and academically, and that they are able to meet the students' needs in a small class size of 12. The students attend weekly counseling, behavior counseling and utilize individualized behavior modifications programs and crisis intervention. Tr. 322. They ~fically reported that . .. was making progress and there were improvements in all areas, - seemed happy, and had developed relationships with peers and teachers. Tr. 322. There were 12 students, one teacher and one and a half aides (12: 1:1.5) in each class. - did not have • own I: l aide and there was no indication• required one. Tr. 327. There was no individual BIP because with the suppartlill, ~ • was responding and making progress. Tr. 325. Neither the Parent, nor - - - -indicated a need for an FBA or individual BIP. Tr. 325 . . . did have access to behavioral counseling and crisis intervention, but there is no indication that she needed that level of support. Tr. 325. On the IEP, the staff stated that"- has displayed a sa~justment to the structure and support our program provides." This indicated to- -that ' • was successful with the supports in place and- didn't need additional individualized supports." The staff provided the CSE team with information under academic achievement, social development and physical development and management skills. Tr. 327. The providers formulated the goals and the CSE team agreed with them. Tr. 327. The Parent participated in the meeting. During the meeting, • reported • dissatisfaction with a rednclion. in- therapy and the CSE tabled the recommendation and requested an updated ~ valuation. Tr. 328. Following t h ~ s k e d to sign the documents, the . . . ated that she was unhappy with ~ d would not sign the documents. stated that . . .,,vas unhappy academically not behaviorally (Tr. 3~ er didn't specify or make clear statements as to what • was upset about. Tr.

363. - stated that if the Parent were unhappy, they would send out packets to alternative settings. iia did, at that time, sign a Prio~ t ice Consent form to do the speech and language evaluation. D-7; D-10. It was - opinion at the conclusion of the May 2017 CSE meeting that Martin de Porres was an appropriate program for K.O. as . .was making progress in the program. Tr. 332.

~ stifled that on the report card for the 2015-16 school year at ~ as making progress. • testified that in ELA, • progressed from a one to a two. 111111 stat that "• did make progress, I believe .-,Vas consistent, • didn 't regress, so• wasn't losing any skills, so a is still progressing towards • goals. Even though lllltmaintained the score of two,.._ is sti ll progressing towards • goals". Tr. 352. WII stated that this indicates that . . still needs goals in ELA for the 2016-17 school year. Therefore, they would have to revise • goals whether it be the same goals but a different criteria or an a~ al for the next year to addres5'illalneeds. Tr. 353. Based upon the ED classification, . . . . - iestified tbat • behavior impacted • ability to access.the curriculum. Tr. 356.

The next witness was ~ is a school psychologist in the District and has been e~ t he District for 26 years. She was at - or several years, and is ~ _ _ _ . . is certified as a school psychologist. Tr. 389. As a psychologist at 111111111111111 • is a CSE chairperson, conducts meetings witJ1 teachers. parents and outside professionals, does counseling groups, individual counsel, etc., observes students in out-of~ district placements, and students coming in through preschool.

first became familiar with- whenllll at­

was in tbe second grade

was in the extended resource room program and received the support of both a general and special education teacher in the classroom. . .had an IEP and was classified with a speech an~ impairment. Tr. 391. • received counseling through the social worker at that time. - -was on the crisis team. If a student was having difficulty, they would call one of the crisis team members to support the teachers and the rest of the staff. Tr. 392. 111 testified that "often . . . would have emotional behavioral difficulty and have severe tantrum episodes where . . . would destroy a classroom. - would throw objects." Tr. 392. . . . said this occurred between September and June and the class would have to be removed because . .wa.s unsafe. Tr. 392 . • had a BIP and so when • had an episode, a crisis member was called to support the teacher. Tr. 393. 9 was in a general education classroom with a 1: 1 aide, counseling and speech therapy and an extended resource room program with one general teacher in the classroom all day, one special ed teacher half day, and one classroom aide fulltime. Tr. 397. Th~ ~ e would be three to four adults in the classroom all day and 23-

24 students. Tr. 395. ~ strained in crisis prevention so if a child is out of control and at risk at hurting herself or others, there are certain resistant training positions to support the student. Tr. 396. ~ testified that there were occasions wherelllla needed to restrajn- and use the CPI training. Tr. 396. . .would be upset when the crisis team was called because • knew that 31111avas out of control in • behavior and needed to be supported. -.Would have episodes where911twould tantrum for about 45 minutes and the Parent would be called to support the school and oftentimes the Parent was unreachable. Tr. 396. - doesn't recall the Parent coming to school when they would call. Tr. 397. After the 45 minutes oftantruming, she would nom1ally stay in the psychologist's or principal' s office with the support of the aide and another teacher untile was calm and then we would try, if• was able, to transition .• to the classroom. Tr. 397. It was successful at times. The tantrums were not predictable, and it wasn't clear if it was from frustration through work or difficulty during transitions. Tr. 397. "1111,also had seve~ s u es so often times when -.got frustrated• couldn't express ~ l ra Tr. 378. - oncem about - behavior was safety.

With respect to communication with the Parent, they would often call and the Parent would not be able to come to school to support- Tr. 398. Wlc did not attend parent-teacher conferences. They would try to reach 1--by phone and • was often ul)Ieachahle. Tr. 399. They would send. .certified letters and they would come back. Tr. 399. They tried to set up several meetings with the Parent to talk about their concerns but they did not happen. Sometimes the Parent would set up the meeting and not show up. Tr. 400. Finally, at the end of second grade they were able to reach aaandtal_ked with • about sending packets to alternative placement~ nd of second grade a CSE meeting took place and~ re sent out to- and- ed placeement at -

Tr. 401 . After• transferred to no longer had contact with he psychologist in charge at that pomt wa Tr. 402.

. . came in contact with~ again ~ n dentwas in fifth gra~e. (2016-17 school year) - had trans1t10ued fro~ t~ at that time. Tr. 403. chaired a meetings d u r ~ g r a d e . Tr. 404. It was H9understa11ding tbat . . was in her second year atlllllllllllllmd was making progress. Tr. 405. • setup several CSE meetings during the Student's fifth grade year and the Parent did not respond. Tr.

406. Eventually, at the end of her fifth rade ear 2016-17), the Parent appeared at a CSE meeting by phone. Tr. 406; D-21. The staff participated at the CSE meeting by phone. . - .recalls the social worker stating that was niaking progress during counseling sessions;- didn't need the time out room often; and although • stiJl got frustrated, it was easier for - to work through it. Tr. 409. The teacher stated th~ was making academic progress and that math was a strength for • particularly calculations though • still stru2d with word problems~ P does not indicate that the Student needed a BIP. . . . . . .xplained that- is a school that has a school based behavior system so kids don't often require individual BIPs. Tr. 410. In terms of classifications, the school has a mix including learning disabled, emotionally disturbed, speech impairment and other health impairment. Tr. 410. In terms of crisis intervention, there was no discussion as there had been in~ e.co:nd grade year. - a.id that - was making progress a and this was a much more appropriate program than the general ed program • had been in. Tr.

411. In terms of speech,. . continued to require a mandate of speech therapy, two times per week for 30 minutes each time in a small group. Tr. 412. In terms of- progress,. ..,_still had severe difficulty with expressive language and needed improvement in • vocabulary skills and grammar syntax. Tr. 412. The Parent was on the- one but didn't say much, A d.id not express any problem with the program or • progress at Tr. 413. The CSE recommended a continuation of summer services for speech (two times a week for 30 minutes each time) and counseling (one time a week at 30 minutes each time) due to regression. Tr. 413. At the meeting, the Parent agreed to the school year program but declined summer services. Tr.

414. The Parent indicated that they were going away for the summer. Tr. 414. There was a discussion of the goals for reading, writing, mathematics, behavior, and speech and t(!stified that • believed these goals were appropriate fo1~ _ . based this on the fact that . -was making progress and as a result of discussion with staff and the progress reports these were areas that needed to be remediated and • believed them to be appropriate for iii Tr.

417. . . required a school like s opposed to a less restrictive environment due to the fact that there were appropriate supports in place at Although . . . was making progress, they felt - vas not ready to transition to a general education building. Tr. 419.

On the Student's progress report, in reading, • was progressing satisfactorily by June. Tr. 420. This was true with- writing goals as well. Tr. 421; D-22. In terms of mathematics, in two of.-goals a was progressing gradually. This is still progress, though its gradual progress. Tr. 421 . All of - goals for speech and language indi_cate that - was pr~ 1g tosatisfactorily and in terms of comprehension, • achieved that goal. Tr. 422; D-22- ­ social/emotional/ behavioral goals were • area of greatest need, yet s~ and steadily. Tr. 423-424. With respect report card (D-23), - gressing slowly ndicated that the teacher comments were positive and indicated that • was working hard and pleasure to work with in class. Tr. 425. The scores on the report card refer to classroom academic goals and indicate that • is meeting basic goals and exceeding goals. Tr. 425.

Following the May 2, 2017 IEP meeting (D-21), the Parent declii~ram. This was memorialized in the Prior Written Notice dated September 5, 2017. llllllllllllltited that in late August, the Parent had called the District to express that • didn't want ~ oing back to~ d asked that packets be sent out to ~ d other programs. Tr. 426-427. The Prior Notice included a Proposed Amendment to IEP without a Committee meeting (D-24) which stated that . __would be put on home instruction and receive educational support, speech therapy and counseling while packets were going out. Tr. 427. This was consented to by the Parent on September 19, 2017. Tr. 428. There was also a letter from the Parent dated September 5, 2017 declining the counseling. Tr. 429. The District discussed their concerns with the Paren~ding the Student receiving counseling. Tr. 429. At this time the Parent was residing in llllllllllllllland the Student was receiving the home instruction poke with the home providers to give them materials. They said the Parent would come down at the end of session but would. ot articipate in the sessions. The District applied to nd Tr. 432. The Parent never completed the applications. Tr. 432.

On September 19, 2017, the District obtained consent to do evaluations for the Student. They tried to get consent during fifth grade but never received it for the triennials. Tr. 303. The District received the Psychiatric Evaluation (D-32) on October 5, 2017 and sent out a meeting notice to the Parent for October 16, 2017. The Parent participated in this meeting by phone. Tr.

437. The documents considered at this meeting were the Psychiatric Evaluation ( D - 3 ~ Social History Update (D~ the other evaluations had not come in yet. In terms of_ evaluation, he diagnosed- with attention deficit disorder and disruptive dysregulation · volvin bi o isorder. He recommended that the Student attend to assist with the medication regimen and the Parent, at this time, was in favor of the program. Tr. 439. The Prior Written Notice following this m e e t ~ indicated that screenings would be set up ti r Tr. 439. - cstified that at the meeting they discussed entail. Tr. 441.

A triennial Psychological Evaluation dated October 27, 2017 was conducted and indicated that. .has average cognitive ability. The scores on the evaluation were consistent with - .previous psychological reports. Tr. 443; D-46. An Educational Evaluation dated October 27, 2017 was also conducted. D-43. This indicated that the Student bad significant deficits in reading, math and written language. Tr. 444.

In tenns of hom e instruction~ tc1ted ilia- would orten be sick and miss sessions. In November, 2017, the Parent requested that home instluction and speech be discontinued. D-45. - tatcd that • had difficulty commtmic~ Parent and the Parent wouJd sometimes reach out to Pursuant thercto- - -sent a letter to the Parent stating that ndicated that the Parent cancelled sessions. A CSE meeting was then set up for Decembet 13, 2017 to address Parent concerns. D-47. The Parent participate~bone. After the Parent was called A got very angry and upset and insisted that • want~c- in c1 school program not :.i- setting and thon hung up. Tr. 447. At the meeting, the District had planned to review the other evaluations but the Parent bung up before this was possible. Tr. 449.

reening had been set up for the Student at for December 22, 2017.

was going to meet the Parent at the screening ut 1e arent did not attend. Tr. 450. ~ so went to the~ creening and the Parent didn't show up. Tr. 451.

Another CSE meeting was scheduled for January 17, 2018 and included- This meeting is a transition meeting and is held for all sixth graders with IEPs. The meeting did not take place because the Parent did not inform the District she was having an attorney present and the District and~ anted their attorneys present as well. Tr. 452-454. Another CSE meeting was arranged for February 1, 2018 but did not include- They didn't feel it ecessary to have both at this 1 n ~ u s e they just wantw to figure out placement for • for the school year at that titmlllllllllllllllbelieved that the address that all notices w~re mailed to was the address the Parent had used since the child was in second grade and it included a r. 456. The Parent did not attend the Febrnary 1, 2018 CSE meeting. The meeting was not held without the Parent because they wanted her to participate and be part of the process to really understand what their concerns were and to discuss a plan.

When the Parent refused home instruction, the District contacted CPS. Tr. 458. The case worker called - everal times but did not.indicate what next steps would be taken. Tr. 455.

ent two letters to the Parent regarding screenings at D-5 7.

Februar 16, 2018. The Parent never completed the application form for

(D-85) that equired for the screening. Tr. 460. - understanding is that the Parent did show up, but did not participate and left. Tr. 462.

On March 15, 2018, there was co-es ondence indicating that the Parent was willing to restart - home instruction. D-61. elieved that this was as a result of the CPS ingto the f ~ e services started at the end of March. Tr. 465; D-72.

stifled that ~ ad some difficulty arranging a schedule with the Parent, however, based on session notes, the sessions started on March 27, 2018. Tr. 466.

Another CSE meeting was scheduled for June 18, 2018 as a transition meeting including - D-63. The June 18th meeting was cancelled because they did not hear from the Parent and wanted • to have an opportunity to participate. Tr. 470; D-63. A second meeting was schedul~June 21, 2018. D-64. The purpose of that meeting was to further discuss a program f01·- This meeting did nol take place because the Parent did not attend. testified that the annual review for RED . for sixth grade ultimately took place without the Parent

ACT

on June 29, 20 18. D-66. The CSEED was not required to make a recommendation for the 201 8-19 school year because they are .tllllltistricl Tr. 473. The~ ould be responsible for making a recommendation for ~ venth grade. Tr. 474.

- estified that when the Student was in second grade at - the District hod a BIP in place and an FBA bad been done prior to that tin1e. Tr. 477. Throughout • second grade year, • • •testified that • had set up various meeting to talk about their concerns regarding • r behavior, the behavior plan, etc. The Parent always participated by phone. Tr. 479. At the end of the year the ~ ed that the placement wasn't working and gave permission for packets to be sent out. - ndicated that it was difficult to get the Parent to participate in meetings and that the District rarely had a meeting without a parent. Tr.

483. The CSE changed the Student's classification to emotional disturbance when ~ ntered third ~ ecause this was the most appropri.ite fo- t that time. Tr. 489. - stated that it wa~ primary presenting problem at this time. Tr. 489.

- didn't interact with- again until fifth grade. At the May 2, 2017 IEP meeting there was a discussion about crisis intervention and the time out room was listed on the IEP. The counselor at the meeting indicated that9! still got frustrated but didn't require the time out room consistently. Tr. 489. The purpose of a summer program is to prevent regression.

Even if a Student is showing progress, summer programs may be recommended. Tr. 494. She stated tha- was susceptible to significant regression. Tr. 452; D-21. The goals at the meeting were provided by the special education teacher and service providers at th - school. Tr. 501. At the meeting, the CSE felt that was the appropnate program so they didn't discuss other more mainstream programs because - was making progress. Tr. 507.

- estified that over the years she gave the Pa~ of the procedural safeguards and also explained them to 9r verbally. Tr. 518. ~ estified that­ report does not indicate that e Student needed a more restrictive environment then w ~ provided at Her understanding was that - as recommending a ­

o go through a different medication regiment to help her deal with her ADHD and disruptive dysregulation disorder. Tr. 522. It is not a permanent placement. Tr. 523.

- stated that the Student was absent a lot during the 2015-16 and 2016-17 school years. Tr. 534. The CSE did discus t's attendance with the Parent at the meeting and • Lndicated that the child was sick. dicated that this could impede a child' s progress in school. Tr. 535. When :vas recommended for fifth grade, there was 110 indication from the staff that a or~ as necessary. Tr. 536.

The Student had been in the District for eight years, two for kindergarten and six years for first through sixth grade. Tr. 53 7. ~ did not think that\111111 should have been retained for an additional year. Tr. 537. ljiae believed holding students back affects their social emotional wellbeing and in this case, it would have been twice. A believed it would be damaging to llll•s self-esteem. Tr. 538. The lack of educational opportunity in sixth grade was due to the Parent. The District was available to provide home instruction and related services throughout the year. Tr. 538-539. The District set up the home instruction and the Parent requested it be discontinued. When it resumed it was difficult getting it started because the Parent did not want the service, not because the District was n o t ~ - Tr. 540. The District offered the Parent the opportunity forllll to remain at~ during the 2017-18 school year while the application process was going on, but • refused. Tr. 545-546.

The last witness was · he is an assistant principal at the lllllllland has been in that position for ten years. Tr. 558. Prior t0 that Ille a classroom teacher, resource room and testing coordinator. Ilk bas been at for 24 years. Tr. 558. i9Pbas NYS certification in special and general education, literacy and administration. Tr. 558.

For the 2015-16 school year, - served as the assistant principal in charge of curriculum, education and supervision of teachers in classrooms. ~ is in the classrooms all day working with students and teachers. s a special education school for socially and emotionally disabled children. Tr. 559. There are approximately 180 children in the building. The classrooms are ungraded and the children are between seven and 14 years old. All classes in the building are 12: 1:1: 5. The point five insures that there is extra support staff in the hallways, behavioral counselors, and also allows us to have extra staff so that they can put a third person in the classroom at times for extra help for the students. Tr. 560. There is a social worker assigned to every three classes; a behavioral counselor for every four classes; plus extra counseling support. Tr. 561. The entire staff is trained in crisis prevention and the classrooms are small, structured environments so that we can work on the student's behaviors, emotions, and then help them begin to learn to be educated. Tr. 561. They use some scientific based programs including McGraw Hill and Journeys for Science and certain pieces from Reading Recovery, Wilson and Lindawood-Bell. Tr. 561. Upon entry of the student, after getting to know where they are academically and what their needs are, they determine what skills they are missing to put together a program. They use small groups in the classroom, one-on-one, and pull-out and push­ in, as needed. Tr. 562.

-

became familiar itwh- in September 20 15 when llacame to Tr. 567. When llll started, . had a lot of behavioral issues, was very anxious, and bad a lot of anger and a low fn-1,s t:ration tolerance. Tr. 565. When • was calm~• was sweet. however, when a got frustrated, . . .ould be both verbally and physically aggressive. Tr. 565.

At the beginning of the program, when upset,.....,.ould use disrespectful language. Overtime, the use ofinappropriate language decreased. Tr. 565. During the 2015-16 school year . _ reading comprehension was in a first grade level and • world attack skills were on a late kindergarten level and • mat- n a second-grade level. From the beginning of

2015-16 school year to the end testified that • made a lot of progress. Tr. 566.

~ :eading increased about a year according to. .UT A testing and math continued to stay strong. Tr. 566. In terms of social emotional functioning, this also changed over time.

At - here is a schoolwide behavior program that works with token economy. ~ ol wide program teaches students to make choices. There are also choices in everything they do and rewards for good choices and consequences for bad choices.

Tr. 567. At the beginning of the year, • would come in not wanting to come to school and not trusting the staff. Tr. 567. When • was given directives that • did not wish to follow, on a few occasions* lashed out physically or verbally however, over time - .learned coping skills with the social workers, behavior counselors, and administration and did not need to be escorted out of the room. "'-e would be able to be prompted when. _ was going through a difficult time to go to a counseling session or the counseling center to talk over how• felt. Tr. 568. Most students come to the school and use the schoolwide behavior plan. I~ nds they need more, the school will conduct an FBA and devek~ P. Tr. 569. - testified that the schoolwide behavior ~ ropriate for- The team meets on a constant basis

(teacher, social workers, lllllllllllllllto discuss the students and to adjust what is working and what ~ 70. They met formally once a week but it's an ongoing dialogue. Tr. 570. Tr.

571 . - - -is in the classrooms on- ail d basis, however, it fluctuates as to how much time is spent in a class per day. Tr. 571. s behavior showed improvement by November,

2015. a was more cooperative, * ha good days. * sta1ted to enjoy coming to school, and making attachments to some of the girls. Tr. 573. They experienced • having good spans of time and working on• frustrations. Tr. 571.

Behavior and Academic Tally (BAT) sheets would be sent home every day monitoring each student in categories such as respect, following rules, completing work, etc. The sheets were supposed to be signed and returned. If they did not come back, the social worker would commnnicate with the parents. Tr. 579. Socially ~ seemed to be happy and participating in the events held in school. Academically,4/llla started at a kindergarten level in reading. The second year !lilt was in fifth grade and reading on a second grade level independently. Tr. 579.

They would work in small groups, use iPads which specifically helped K.O. visually and use an interactive board with the classroom. The program was multisensory. Tr. 576. During the 2015-16 school year,. was in the middle of her class academically; lower end for reading, higher end for math. Tr. 577. In terms of communication, they have Parent conferences throughout the year, however, the school was unable to coordinate this with the Parent. There were, however, phone calls between the Parent and the school. Tr. 580. The Student did miss quite a bit of school during the 2015-16 school year and they tried to work with the Parent to increase attendance. Tr. 580. The main office would call home whenever - was absent and if• did not get a response, the social worker was notified and called the Parent. Tr. 582; D-74.

During the 2015-16 school year, the Student was present 128 out of 179 days. - estified that a child's attendance has a significant impact on the student's academic, social and emotional functioning in school. Tr. 594. - stated that "if the child is not coming to school, and there's not consistency for both academics and social, it' s difficult for them to come in and catch up to where they were and to continue to make progress significantly." Tr.

594. The social worker would reach out to the Parent to try to help get ~ to school. Tr. 595. As time went on in school, - earned the rules and was feeling better and gaining more self­ esteem, however, socially-emotionally there were different things going on in 1-life and some days would be better than others. Tr. 596. There were social workers and psychologists in the classrooms throughout the day. Althoughlllls mandate was once a week- she would get more support from the social worker, teacher, counselors on the days that were more difficult. Tr. 596.

- testified that for the 2015-16 school year,. -made progress in all areas of school. ,._moved up a year in reading and math. In the classroom, .,_,as in fourth grade and was working on a third to fourth grade level and in math was on a third grade level independently. Tr. 601. • went from a late kindergarten level in reading to a second grade level. Tr. 602. Therefore, slow and steady progress was made. In the classroom, • could do third or fourth grade work and comprehend with assistance and prompting. Tr. 602.

~ ere was also a general educauon teacher trom the U1stnct ~ ad the same level of participation in-classroom as a t .e previous year. Tr. 604. During the 2016-17 school year, ~ was not as agitated. When--. became frustrated, a was able to verbalize llllt frustration more. Tr. 605. • self-esteem was increasing. Tr. 605. During the 2015-16 school year • was out of the classroom dueto ""'9 behaviors frequently, this was not the case during the 2016-17 school year. Tr. 606. • was gaining more and more time in the classroom and when_ . felt frustrated would ask for assistance. Tr. 606. During the second year, • outbursts were much less frequent and when • got upset ~ were able to ~alk • down aod bri°:g ,_ back if • shut do~. ~ did not need • ow~ , the schoolw1de program was workmg for ... Tr. 607. Durmg the 2016-17

•e school year, • would come to school willingly. There was an increase in • attendance. Tr.

608. • paiticipated in a cooking class and indicated that .-.wanted to be a chef. work in the school store as well. These were tasks that_ . was allowed to do as • behavior would become more appropriate. Tr. 608. In class • was participating and did not need as much assistance to complete a task. ~ began to write using punctuation details and would sit in a group and give a lot of effort in her work. Tr. 610. In the classroom, • was at a fourth-fifth grade level reading Journeys and chapter books. Tr. 610. As math was getting harder, • was leveling off, but a:: would try her best. Tr. 610. There was slow and steady progress in auditory processing and • was more fluent in recall of words. Ne still needed help with syntax and semantics but was progressing. Tr. 601. There was improvement in • attendance and in turn this had a positive impact on- behavioral function in the classroom. Tr. testified that it would have been appropriate fo~ to have a third year a as • was continuing to make progress, gain confidence so that• could eventua y return to t 1e District and be able to handle • behaviors and emotions. Tr. 614.

During the 2016-17 school year, the school tried to make contacl wilh the Parent, however Parent did not return calls or communicate. When the school tried to call about attendance, it was the Parent's position that • didn't have to tell the school when the Student was absent. Tr. 616. Proper protocol is to provide the school with information as to where the children are and what's going on and whether it is an excused absence. Tr. 616. testified that the Parent did not cooperate with the attendance process during the second year, however, did at times during the first year. Tr. 617.

At the time of the IEP meeting for the 2017-18 school year, ~ as called in to answer a question about the Student's academics. Tr. 620. Silla stated that although the scores on the UTA indicated second grade for reading and math, the teacher reported • was on a fourth grade level in reading and math. Tr. 621. - believed that the UTA tests for December would have changed by end of school year. Tr. 622. illll was on a fourth grade level in reading at the end of the 2016-17 school year. Tr. 624. ilils stated that moving up two grade levels with significant progress in behavior is appropriate progress. Tr. 624. The exJ:_!ectation for a nondisabled child is one grade level per year. Tr. 625. In terms o~ , tated that the basic skills oftlJlt were very Jow whenlfa came. Once• acquired the basic skills and bec.ame more fluent, !l!t!IP was gaining grade levels because a behaviors were under control and • r attendance was good, so all the variables were coming together to help i..catch up to where • should be. Tr. 625. Due to 1- social-emotional progress, they were going to put- in a more academic class moving forward. Tr. 626.

Although many of the goals on the progress report for the 2016-17 school year indicated that- .was making progress towards • goals but hadn't achieved them yet, they knew. ­ would obtain those goals either in the summer since it was a 12 month year or the goal would automatically be put in tllr curriculum for the following year. Tr. 630; D-22 .. In terms of the soda!, emotional and behavioral area, • didn't make as much progress because 1811(:bdn't participate in the summer program and • goals could not be achieved. Even so, - made progress with respect to • social and emotional needs and was able to verbalize and work within the classroom and keep • behaviors in check. Tr. 632; D-22.

In terms of '--report card for the 2016-17 school ~ doing very well. Tr. 63 3. Althoughllll did not participate in the summer program~ ougbt it would be beneficial because - - was benefiting from being consistent and • levels were going up and • behaviors were becoming more appropriate. Tr. 635.

testified that during the 2015-16 school year, . did not start school until September 24, 2015. Accordingly, • was only present 4 out of 15 days that month. Taking this into consideration,• was absent approximately 40 days the first year and the second year it was 20. Tr. 659.

On.., report card for the 2016-17 school year (D-23 ), regarding classroom goals, _ . exceeded her basic goals in all areas. Tr. 666. On • progress report for the 2016-1 7 school year regarding IEP goals (D-22).• was progressing satisfactorily. Tr. 667. They do not give an achieved goal unless • can do it constantly for six months. They would have to ! r & came back over the summer or in September, if • continues to progress. Tr. 668. "Progressing §• gradually" is slow and steady progress, and "Progressing satisfactorily" means that they expect • to achieve that goal. Tr. 669.

testified that there were four incidents during 2015 reported in the emergency intervention log from October 14, October 21, October 28 and one from November, 2015 and no others subsequent to that. Tr. 799.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][l][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

The main focus of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (F APE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 FJd 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217,245 [2d Cir. 2012]; Ce1Ta v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Walczak v. Fla. Union Free Sch. Dist., 142 R.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist.. 554 F.3d 247,253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S._, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 6 94 F. 3d at 190-91 ), the Court has al so explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 FJd 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a F APE to the student, or (c) caused a deprivation of educational benefits (20 U .S.C. § 1415 [f] [3] [E] [ii]; 34 CFR 300.513 [a] [2]; 8 NYCRR 200 .5 Li] [4] [ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; (R.E., 694 F.3d at 190; M.H., 685 F. 3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415 [f][3][E][i]). A school district offers FAPE by "providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." (Endrew F., 137 S. Ct. at 1001 ). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tuckerv. Bay Shore Union Free Sch. Dist., 873 F.2d 563,567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak., 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement' (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at +15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F .3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.l 14[a][2][i], 300.l 16[a][2];8 NYCRR 200.l[cc], 200.6[a][l]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students' needs (34 CFR 300.320[a][l]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2] [v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seekiuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

First, it should be noted that based on the Statute of Limitations, the Parent's claims in this matter are limited to the period beginning June 29, 2016 and any claims with respect to any period of time prior to that time are time barred. 20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. Educ. § 1415[b][6][B]; Educ. Law §4404[1][a]; 8 NYCRR 200.5 [j][i]. For purposes of this hearing, both parties appeared to be in agreement with this and any testimony presented for previous years was for background purposes only. IHO-ill; IHO-IV.

I have reviewed all of the testimonial and documentary evidence in this matter and clearly the central issue was whether the District provided the Student with a F APE for the 201617 and 2017-18 school years. For the 2016-17 school year (fifth grade), the Student's IEP provided for placement in-state approved private therapeutic day school in a special class ( 12: 1: 1.5) with o 1· c in a small group (3: 1), one time per week for 30 minutes each time and ~ erapy in a small group (3:1), two times per week for 30 minutes each time. The program is an extended school year program and the Student has access to behavioral counseling and crisis intervention when needed to diffuse highly stressful situations. ~ ffers consistent structure and support for children with social, emotional and ~ . D-6. The school maintains a schoolwide behavior program for all students which utilizes a token economy. Tr. 567-569. Staff meets on a regular basis to assess student behavior and make adjustments as necessary including individualized BIPs if required. Tr. 607.

- attended and chaired the IEP meeting for the 2016-17 school year. At the meeting the social worker stated that the Student was making progress and had fewer outbursts and did not need an individualized BIP. Although • had access to behavioral counseling and crisis intervention, it did not appear that • needed these services at this time. In terms of - the therapist stated that the Student was using • language more effectively and was asking for a reduction in her~ andate. The Parent objected to this and the CSE decided to conduct an~ valuation and keep the mandate the same pending the results. The staff from - rovided the CSE team with the information under present levels of performance and the providers and teachers formulated the goals and the CSE agreed with them.

In this regard,. continues to have difficulties with speech and language especially in the areas of syntax and listening and reading comprehension . .._ also requires assistance with formulating grammatically correct sentences on a consistent basis and making inferences and providing extended explanations for things - has read or was read to that are on grade level. • has a low frustration level and can act out verbally and physically. Althoughlllla: is making progress and has internalized what. -needs to do,. _ is not always able to do it with consistency. ~ starti ng to implement coping strategies and continues to work to improve 11111 frustration tolerance. It is clear that the goals were appropriate to address • academic and social/emotional needs and specifically addressed • phonics and work analysis skills as well as . _ physically aggressive behavior and • bility to use coping skills. D-6. The team determined that the emotional disturbance classification is still appropriate since her behavior still impacts her ability to access the curriculum. Tr. 356. Based on testimony,. . continues to adjust to the structure and support provided in the - and is receiving educational benefit and progressing academically and behaviorally as a result of the program.

For the 2017-18 school year (sixth grade), the Student's IEP again provided for placement in the a state approved private therapeutic day school in a special class (12: 1:1.5) with ·n a small group (3:1), one time per week for 30 minutes each time and : erapy in a small group ( 3: 1), two times per week for 30 minutes each time. D-21. The CSE continued to recommend extended school year services. The social worker from stated thatllll was making progress during- sessions, • didn' t need the time out room often, and although • still got frustrated, it was easier for hW to work through it. Tr. 409. Iiia teacher stated that • was making academic progress and that math was a strength for • particularly calculations though . . still struggled with word problems. Tr. 409. The team did not feel that • needed an individualized BIP or crisis intervention at this time. Tr. 410. ~ still had difficulty with expressive language, vocabulary skills and grammar syntax so• · speech mandate remained the dame. Tr. 412. There was a discussion ~ team members of the goals for reading writing, mathematics, behavior and speech and- -testified that. . believed these goals were appropriate for the Student. . . based this on the fact that • was making progress, and based on a review of...-,,rogress reports, these were areas that required remediation. Tr. 417. The CSE did not feel • was ready for a less restrictive enviro1m1ent fo1-...sixth grade year even though • was making progress since a was presently progressing with the appropriate supports in place and was not yet ready to transition. Tr. 419.

The Parent is also alleging t the h Student

- re tuired a functional behavior assessment

(FBA) and an individualized BIP at ue to significant behaviors over the past two years and this was not included m e s or e 2016-17 and 2017-18 school years. D-6; D-21.

When developing an IEP, if a student's behavior impedes his or her learning or the learning of others, the CSE must "consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior when developing, reviewing, and revising an IEP (20 U.S.C. § 1414[d][3][B][i]; see 34 CFR 300.324[a][2][i]; 8 NYCRR 200.4[d][3 ][i], 200.22[b] [2]). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student (8 NYCRR 200.4[d][3][i], 200.22[a], [b]). A behavioral intervention plan shall also be considered for a student with a disability in cases where the student's behavior places the student or others at risk of harm or injury (8 NYCRR 200.22[b] [ l ]). A behavioral intervention plan (BIP) is defined as a plan based on the results of a functional behavioral assessment (FBA) and it describes the problem behavior, sets forth hypothesis as to why the problem behavior occurs, as well as intervention strategies to address the behavior (8 NYCRR 200.1 [mmm]). The FBA shall be based upon multiple sources of data as appropriate, including information obtained by direct observation of the student and from the student's teachers, parents, and related service providers, and "shall not be based solely on the student's history of presenting problem behaviors" (8 N YCRR 200.22[ a][2]). The FBA is required to set forth a baseline of the student's problem behaviors, including sufficient detail and addressing "antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3 ]). The BIP must identify baseline data on the student's problem behaviors across settings, people and times of day and note the frequency, duration and intensity of the targeted behaviors (8 NYCRR 200.22[b][4][i ]). The BIP shall identify intervention strategies to prevent the behavior, to teach alternative behaviors and provide consequences for the inappropriate and alternative behaviors (8 NYCRR 200.22{b]{4][ii]). The BIP shall also include a schedule to measure the effectiveness of the interventions (8 NYCRR 200.22[b] [4] [iii]).

ear the Student was startin her secoud year at ­ estified about the schoolwide e av10r program at at works with token economy. Tr. 567. testified that if the school finds that a student requires more than the schoolwide behavior plan, they will conduct an FBA and develop an individualized BIP, but thatl l l did not require this. I credit testimon.y in this regard since * is constantly in I• classroom and meets regularly with the teachers and counselors regarding each student. At the May 12,^[20] I 6 CSE meeting the team stated that_ ,ehavior had improved with the schoolwide program. When _ ,ecame frustrated~ was able to verbalize• frustration and ask for assistance. Based on the input of the teachers, counselors and staff, the team detennined that - did not need• own lllllmd that the school program was working for her. Tr. 607. On the May 12, 2016 IEP, it states lhata . has made significant improvement ·with regulating • mood and has fewer outbursts. Although ~ ohtinues to struggle with expressin b I :If in an appropriate way and aggression,Wit has learned strategies ou how to c:ool I , ,.. down and tlu·ough counseling intervention, is able to cope with the issue at hand. D-6. On M report card for the 2015-16 school year, • teacher wrote thartilllhas improved behaviorally. D-12. With respect to - . social/emotional/behavioral goals o~ IBP for the 201 6- 17 school year, _ . is progressing satisfactorily with respect to (a) accurately identifying• own emotions/feelings, the intensity of those feelings/emotions and strategies for dealing with those emotions/feelings; and progressing gradually with respect to (b) eliminating negative and/or physically aggressive behavior throughout the day, and (c) when expressing a negative emotion, identifying and using a coping skill to maintain acceptable social behavior.

lso testified that • did not need an FBA or individualized BIP for the 2017-18 school year. In fact,. _ felt that although a third year at would be beneficiaJ forlllll • feJt that 9 was continuing to make progres·s and gain confidence and that a was hopeful that would be able to eventually return to a district program and handle • behaviors and emotions afterwards. Tr. 614. In connection with whether the Student's behaviors were impeding the Student's learning during the 2016-17 school year, estified that w was gaining grade levels because• was making progress with her behaviors so that all the variables were coming together to help - eatcb up to where a should be. Tr. 625. With respect to the 2017-18 school year, the Parent had declined - and was receiving horn~ instruction. According to - • provide~ ction found ~ to be cooperative and a behaviors were under control during instruction.

Accordingly, I do not think an FBA or individual BIP was warranted for the 2016-17 or

With respect to Parent's request for compensatory education services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wengerv. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001 ]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][l][B]; Educ. Law §§ 3202{ l ], 4401 [1 ], 4402[51). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that 11 [t]he IDEA allows a hearing officer to fashion an appropriate remedy, and ... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory 0 additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriate!y educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"J; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307,316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations ofIDEA"]; Puyallup. 31 F.3d at 1497 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability. Appeal No. 11-091).

Where there has been a violation of FAPE, hearing officers have broad authority to grant such relief as they deem appropriate, including compensatory education. 20 U.S.C. 1412 (a)(l), 1415(i)(2)(C)(iii), 34 C.F.R. 300.51 (c)(5); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer should thus award compensatory education in the form of education or services where such an award is necessary to make up for a FAPE deprivation.R., 546 F. 3d at 123 (citation omitted). In evaluating a claim for compensatory education, a hearing officer must engage in a fact-specific inquiry to fashion an award that is "reasonably calculated to provide educational benefits that likely would have accrued from ... services the school district should have supplied in the first place." Reid. v. Dist. Of Columbia, 401 F.3d 516,524 (D.C. Cir 2005).

It is clear that the District met its burden with respect to FAPE in this matter for the 2016-

17 and 2017-18 school years. Compensatory education is a remedy to make up for a FAPE deprivation. During the 2016-17 school year-was attendin the and was receiving educational benefit from the instruction. pecifically stated that ~udent came in at a kindergarten level in reading and at the end of the 2016-1 7 school year , - w a s on a fourth grade level. Tr. 620-624. ~ tated that this was based on the teacher's report and although the UTA testing did not indicate this on the December testing, it would have changed by the end of the year. I credit - testimony in this regard. • stated that the expectation for a nondisabled child is one grade level per year. Tr. 624. llt stated that_ came in very low academically during the 2015-16 schoo I year, however since !ilaacquired the basic skills and became more fluent, • was gaining grade levels, behaviors were under control, and• attendance was improving. Tr. 625 .• stated that not all children make that kind of progress and - .was really moving ahead, gaining confidence and trying hard. In reading, she enjoyed reading chapter books in the classroom and was able to participate and feedback information regarding the plot, elements of the story, and could sequence. In fact­ testified that based on l• progress. the~ planning on putting i.. in a more a ~ oin forward. Tr. 626. With respect t~ s report card for the 2016-17 school year (D-23), estified that • is meeting or exceeded the basic classroom academic goals in all areas. Tr. 666. In this regard, - indicated that the teachers comments on the report card were positive and state that • •was working hard. Tr. 42 -. I te ·ms 1t for the 20 I6-17 school year with respect to IEP goal s, 11 testifie~ s progressing and they expect to reac most o · go s. r. 6 . In this regard,- tated that they would not have an achieved goal unless • could do it constantly for six months and would have achieved many of the goals completely if • had continued over the summer as mandated. Tr. 665. Although in most goals ~ as progressing satisfactorily. even i~ as prog1e.ssing gradually, ~ as still making progress. Tr. 421. It is clear from the testimony that • was making progress at d that the therapeutic environment continued to be appropriate for the Student.. The IEPs that were created for the years in question were designed to meet the Student's unique needs and allow • to make progress "but appropriately ambitious" in light of her circumstances.

I do not credit the Parent testimony in this matter. • had no recollection of the Student's progress reports or fir report cards, had no recollection of parent-teacher conferences and no recollection of the specifics of• attendance at CSE meetings. Although the Parent thought the Student should be on grade level, - made clear that "when you have a child that has a significant disability and they are far away from the average to begin with, when they are making progress, it doesn't necessarily mean that they are closing the gap toward their appropriate grade level, it just means they are progressing towards t ~ e taking steps in the right direction." Tr. 83-84. Had the Student continued at - based on her previous reports and performance, • would · ed to ~ r ogress academically and behaviorally. There was also testimony from that as- s behavioral issues improved • was better able to access learning.

With res ect to the 2017-18 school year, it was the Parent' s decision to pull lRED

ACT

t out of pplying to programs is a process and the District was providing

ED the Student with home instruction and related services while the process was ongoing pending an ~ n t. As soon as the District found out that the Student was not returning to . _ . _ a Proposed Amendment to the IEP without a Committee Meeting dated Se tember 5, 2017 (D-25) wa~ ffect, providing fo and-

The Parent declined- at that time. The Parent then discontinued all - in November and did not reinstate it until the end of March. The Parent, on the one hand, complained about the and stated that there were no workbooks or homework given to the Student, but on the other h and, • stated that . does not remember why • didn't want home instructi on. Tr. 790; Tr. 858. In fact, . stated that lillt does not remember telling the d ot to come anymore and that the Student was done with r. 847. ln this regard.• stated that "this was last year when I was~ d transitioning to find ~ I don't remember. It could have been anything that happened .. .I don't remember is my testimony and my final testimony." Tr. 859. fnfact, M djdn' t even remember if • stopped bringin- to the ·> J'>elween November and March. I do not find the Parent's testimony credible. Ila.response to most of the questions asked to ~ n direct and cross examination was that • did not remember.

It should be noted that, as soon as the District heard that the Parent had concerns with home instruction- testified thatlilacontacted the provider and reviewed both the session notes (D-33) and purchase orders (D-71; D-72) and determined that the provider was working with the Student on both the curricular areas and • IEP goals and was using curricular material appropriate forallage and, in fact, provided the Student with dittos and other materials that9pullcd in order to addresslilllk needs. Tr. 920.

In addition, - estified that when the Parent refused services, the District did not provide makeups because the child was not being made available to them, however, when the Student was absent for any home instruction or speech session, the child would receive make up services. Tr 161-164. It also should be noted that the District intended on continuing instruction through June 2018, however, the Parent stopped service again around June 7, 2018 because they were moving out of District Tr. 165. Accordingly, although the Student did not receive instruction for a portion of the 2017-18 school year, the District provided FAPE and did everything in their power to set up instrnction for the Student, move the screening process forward, and had no choice but to call CPS to report educational neglect. It should be noted that although the family's circumstances during this period of time was very difficult, the District acted reasonably with respect to their responsibilities.

Accordingly, the District met their burden in showing that the District provided F APE to this Student for the 2016-1 7 and 201 7-18 school years. As a result of the foregoing, the Student is not entitled to compensatory make up services at this time.

It is also clear from the record that equitable considerations do not support the Parent's claims in this matter. Although the Parent attended the CSE meeting dated May 12, 2016, the May 2, 2017 IEP meeting and the October 24, 2017 IEP meeting, l!ll did not attend the other CSE meetings that were scheduled. With respect to the December 13, 2017 meeting, which was scheduled right after the Parent removed the Student form home instruction and speech therapy, the Parent appeared but hung up before the meeting got under way. Tr. 122-123. Although the Parent showed up for the January 17, 2018 meeting which did not go forward, lilltlid not show up for the CSE meetings scheduled for February 1, June 18, June 21 and June 29, 2018. Tr. 145-

156. The District was also unable to get consent from the Parent to do evaluations for the Student for the triennials in fifth grade, however did consent to them during her sixth grade year. Tr. 303.

With respect to screenings scheduled at- -or the 2016-17 school year, two screening appointments were offered to t h e ~ not attend either even though ~ as the one that requested that an application be made to that school d~ing t h ~ Tr. 76-

80. For the 2017-18 school year, the Parent never filled out the forms reqmred by ~ d espite the fact that the Parent was the one that requested that applications be made to t h ~ alternate programs. Tr. 90; Tr. 432. She also did not attend the screening process for~ ven though two d ~ o v i d e d to the Parent and did not fill out the required forms. Tr. 120; Tr. 129. In fact, _ _ an administrator at the District drove out to the first screening to assist the Parent and - .did not show up. Tr. 10; Tr. 451 . also tried to set up screening dates and although the Parent came to the second dated, • arrived an hour late and refused to fill out the necessary paperwork so that l J I •r-

I could be screened. Tr. 142; Tr. 450.

Based on the credible testimony o ~ it appeared that there was a significant amount of outreach with respect to the screenings from the schools that they were applying to and the District, yet a lack of cooperation from the Parent-even stated that the amount of outreach provided in this matter is not typical; however, the District was intent on finding the Student a placement that would address - needs and address the Parent's concerns. Tr. 276. In this regard, there came a point where due to the fact that the Parent discontinued home instruction and was not responding to any of the District's communications, the District had no alternative but to contact CPS. Tr. 129.

With respect to absences from school, estified that although proper protocol in the school was that it was the Parent's responsibility to report an absence to school, it was the Parent's position that • did not have to report absences to the school. Tr. 6 16. stated that the Parent basically did not follow the District's procedure for attendance during the 2017-18 school year. Tr. 617.

Based on the totality of the evidence, the District provided the Student with F APE for the 2016-17 and 2017-18 school years and provided the Student with IEPs that accurately reflect the results of evaluations and reports and the recommended programs were appropriate to meet the unique special education needs of the Student and provide 1119t,vith academic benefit. Moreover, in addition to meeting the burden in this re~he District made extraordinary efforts in attempting to find alternate placements for-upon the Parent's request, despite the District's position that the placements were appropriate. It is also should be noted that equitable considerations do not support Parent's claims. Accordingly, the Parent's demand for compensatory education is denied in this matter and the Due Process Complaint dated June 29, 2018 is hereby dismissed with prejudice.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the Due Process Complaint dated June 29, 2018, in this matter, be dismissed in its entirety with prejudice.

Dated: March 25, 2019

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer Parent's Exhibits None were offered into Evidence

District's Exhibits

Exh. # Date No. of Pages Description

1 11/25/15 1 Speech/Language Progress

2 12/10/15 2 Social Emotional Update 2016-

2017 3 3/16/16 2 Prior Written Notice

Pro osed Continuation for S ecial Education 4 4/15/16 3 Meetin Notice CSE) 5 5/4/16 3 Meetin Notice CSE)

6 5/12/16 12 IEP

Attendance Sheet 7 5/12/16 2 Prior Written Notice

Pro osed Continuation for S ecial Education 8 5/2/16 3 Prior Written Notice

Pro osed Reevaluation and Re uest for Consent 9 5/2/16 1 Consent Form for Reevaluation 10 6/28/16 4 eech and Lan 11 6/28/16 1

12 2015- 1

2016 13 9/13/16 1 Letter :fro~ o parent

14 9/13/16 1

and 15 9/16/16 2

16 9/23/16 1 Notes 17 11/02/16 3 Prior Written Notice

Pro osed Reevaluation and Re uest for Consent 18 11/15/16 2

19 3/10/17 4 20 3/1/17 6 Meeting Notices (CSE)

and

4/26/17 21 5/2/17 12 22 6/9/17 6 23 1 24 9/5/17 4 Prior Written Notice

Pro osed Amendment to IBP without a Committee Meetin 25 9/5/17 1 26 9/5/17 1 27 9/5/17 6 Consent to Release

A lication 28 9/6/17 1 Letter from to 29 9/11/17 1 30 9/5/17 1 Consent Form for Reevaluation 31 9/27/17 3 Re ortfrom 32 9/28/17 5 Ps chiatric Evaluation 33 10/27/17 21 Provider Session Notes 34 10/10/17 7 Meetin Notice (CSE) 35 10/24/17 1 Parent Invitation Res onse Form 36 10/24/17 2 Social Histo U date

37 10/24/17 14 IEP

38 10/24/17 2 Prior Written Notice

Pro osed Continuation for S ecial Education 39 10/24/17 2 Permission to Release Confidential Information

Letter from

40 10/24/17 1 ecial Trans ortation 41 10/24/17 1 Medicaid Reimbursement Permission Form 42 10/24/17 1 Permission to Reilease Information 43 10/27/17 4 Psychological Evaluation

44 10/27/17 3

45 11/28/17 5 46 12/8/17 1 47 12/8/17 3 48 12/13/17 3

49 12/1/17 1

50 12/14/17 2 51 12/15/17 2

and

12/19/17 52 12/20/17 1 Fax 53 1/9/18 7 54 1/17/18 3 55 1/17/18 1 56 1/19/18 6 57 2/6/18 1 58 2/8/18 8

---

Footnotes

[1] The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance were granted.

[2] - lso indicated tha~ began representing the Parent on January 15, 2018 bur did not attend - January 17, 2018 CSE meeting. Tr. 729.

[20] 17-18 school years and • IEPs apprnpriately dealt with- r needs through the placement recommendation.