Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 FINDINGS OF FACT AND ORDER of the Regulations of the Commissioner of Education BEDS No. [REDACTED] NYS ID. No. 524410

[REDACTED] on behalf of their minor son, [REDACTED]

-against- The [REDACTED] School District

Procedural Context

By letter dated April 29, 2019 I was appointed to hear the matter of [REDACTED] on behalf of their minor son, [REDACTED] versus the [REDACTED] School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, on May 6, 2019 the District interposed its Answer. On May 29, 2019 the undersigned received SED notification that the resolution period had expired and, in furtherance thereof, a pre-hearing conference was convened telephonically on June 5, 2019 for the purpose of developing a litigation calendar and, where possible, framing the issues. Additional status conferences were then held on July 30, 2019 and September 3, 2019. On this latter date, the parties indicated that they had been unable to arrive at a mutually satisfactory resolution of this matter. As a result, hearings were held on October 23, 2019; October 29, 2019; October 30, 2019; October 31, 2019; December 19, 2019; February 11, 2020; February 12, 2020 and March 4, 2020. On this last occasion, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result, the compliance date for issuing a decision in the above-referenced matter was duly extended to June 24, 2020.

Specifically, the Parents assert that the School District’s educational placements for the 2017-2018 and 2018-2019 school years, as memorialized by the April 28, 2017 and April 20, 2018 IEPs stand in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and are neither suitable nor appropriate for their child. IHO Exhs. i and ii. As a result thereof, they are seeking tuition reimbursement for the 2017-2018 and 2018-2019 school years in furtherance of unilateral transfer to the 5 Preparatory School (hereinafter referred to as “5”), a non-public school setting. As a corollary, the Parents have defended the educational program implemented by 5 and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Beyond this, they maintain that their actions do not militate against their equitable entitlement to reimbursement.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2017-2018 school year, the student was approximately [REDACTED] years old and commencing eight grade. Thereafter, [REDACTED] began the 2018-2019 school year as a ninth grader. I note that [REDACTED] is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and was classified as “Other Health Impairment” as that term is defined by 20 U.S.C. § 1401(a)(1). The child presents with an undisputed [REDACTED] Disorder (hereinafter “[REDACTED]”), [REDACTED], along with other [REDACTED] and deficits. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

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

The School District’s Case and Summary of Witness Testimony

[REDACTED] testified as lead witness for the School District. Mr. [REDACTED] served as the District’s Interim Director of Special Services from September 2016 through January 2017. The witness maintains several administrative certifications in addition to instructional certification in special education, K-12. In his capacity as Interim Director, the witness supervised all special education personnel, recommended budgetary and programmatic needs to District administration, chaired CSE meetings and was responsible for all out-of-district placements, both CSE and unilaterally placed by Parents.

The witness testified that he was familiar with [REDACTED], having chaired his annual reviews and/or re-evaluation meetings as of spring 2017. Tr. at 43-49. He acknowledged, however, that he did not personally know the child nor had he instructed him. Tr. at 106. As Chairperson of [REDACTED] CSE convenes, Mr. [REDACTED] described the District’s protocol for CSE convenes. This includes obtaining initial consent to marshal and review the child’s record and, where necessary, obtain additional evaluations. Exhs. 4,5. In preparation for the April 28, 2017 CSE review, Mr. [REDACTED] testified that he additionally reviewed the prior year’s 2016-2017 IEP along with the evaluations and assessments incorporated therein. Among the evaluations denominated in the 2017 IEP were various [REDACTED], achievement, processing and language test measures largely obtained from September 2014 through February 2015. Although testing fell within the triennial period, updated testing performed by [REDACTED], Ph.D. in 2016 was included. Tr. at 56; Exh. 1 at 5-8 and Exh. 6.

Mr. [REDACTED] additionally referenced the conduct of a classroom observation conducted by [REDACTED]. Exh. 25. Lastly, the IEP denominates the use of a private school progress report and report card. Significantly, both the seventh and eighth grade IEPs describe a student who continued to struggle with [REDACTED]s, distractibility and [REDACTED] function, all exacerbated by low frustration tolerance. Cf. Exh. 1 at 10 and Exh. 6 at [REDACTED]. As [REDACTED] had not attended public school since the 2014-2015 school year, Mr. [REDACTED] testified that it was important to include as much background information as possible and to collaborate with outside providers. Tr. at 57, 59.

The witness then reviewed the child’s IEP goals. Although many appeared to be articulated verbatim, Mr. [REDACTED] noted subtle differences in their criteria, such as level of achievement required or grade level. Tr. at 60-65. Specifically, this had occurred in reading. In the area of writing, the witness opined that [REDACTED] needed to continue addressing the same goals as he had yet mastered them. For this reason, he believed the sixth IEP goal, a goal which addressed writing during the 2016-2017 IEP, including criteria for success, should be reiterated in the 2017-2018 IEP. Although the student’s second writing goal, the seventh goal articulated in the 2017-2018 IEP, is duplicative of the goal stated earlier in the 2016-2017 IEP, the witness noted that it had been articulated more specifically. Ironically, the 2017-2018 IEP reflects a downgrading of criteria for success. Cf Exh. 1 at 12 and Exh. 6 at 9.

In math, Mr. [REDACTED] noted that although the goals had been duplicated, criteria had been increased, thus “raising the bar” in terms of anticipated achievement. Tr. at 63-64. Addressing [REDACTED]’s [REDACTED], the witness acknowledged that two of his three goals had again been repeated verbatim in the 2017-2018 IEP with minimal enhancement of criteria. However, a new goal requiring [REDACTED] to foster and maintain two positive peer relationships was added, a reflection of [REDACTED]’s desire to develop meaningful friendships. Tr. at 64-65.

While Mr. [REDACTED] noted that identical program modifications and test accommodations were retained from the prior year, a significant program modification had been made for [REDACTED]’s science classes. Tr. at 68. Consequently, it was determined that [REDACTED] would be assessed in the small class science setting in science with an eye toward mainstreaming. Based upon the premise that [REDACTED] would be returning to District, the CSE believed the student would benefit from a small class paradigm of 15:1:1 in all major content areas, a strategy to facilitate [REDACTED]’s transition back to the public school. Following a review of the student’s performance and achievement, mainstreaming would then be considered. Tr. at 68. Consistent with this, the provision for a teaching assistant was removed as that had been predicated upon [REDACTED]’s assignment to a mainstream science class. Tr. at 69. Nevertheless, mainstreaming opportunities for non-academic content areas were incorporated into the student’s program. This included art, music, physical education, and lunch.

In sum, Mr. [REDACTED] opined that the 2017-2018 IEP had offered [REDACTED] an appropriate educational program which would enable him to make meaningful educational progress. Based upon the evaluations and progress reports which had been provided, he believed [REDACTED] was best served in small classes in which special education instruction could be offered. Beyond this, the witness opined that the IEP offered a “system... in which his progress would be very carefully monitored,” along with counseling to facilitate his ability to navigate the social pressures of a larger school. Tr. at 70-71.

On cross-examination, Mr. [REDACTED] observed that the student’s progress would be measured by assessing his portfolio materials. This would include a review of [REDACTED] work samples, including tests grades, quiz grades, essays and projects. Although [REDACTED] had not provided statistical or standardized data memorializing the student’s progress, the witness noted that by studying the file, one would “get a sense of where a student may have started and how they have fared... “Tr. at 116. As for assessing [REDACTED] progress in writing through recorded observations, he opined that this might reflect a teacher progress log for the student. Tr. at 117. Finally, [REDACTED] noted that the structured interviews referenced in the student’s social/emotional/[REDACTED] goals would be conducted by the individual providing the counseling service. Although a [REDACTED] might be performed, this was discretionary. Behavioral observations might be obtained during small group counseling sessions or during other periods of the day.

The witness observed that the Parents expressed concern that their son would be overwhelmed by the transition back to District, an environment which did not include the nurturing intimacy offered by [REDACTED]. Beyond this, they were apprehensive about the stigmatizing aspect of being a special education student within a mainstream setting. While [REDACTED] did not conduct a poll of CSE members to ascertain their opinions of the IEP that day, it was clear that the Parents rejected the program April 28, 2017 IEP at the convene. Tr. at 120; Exh. 1 at 4.

On April 20, 2018, the CSE again convened for the 2018-2019 school. Exh. 2. Although the student was still attending [REDACTED], the Parents indicated that they would continue to consider District options. As previously, [REDACTED] testified that the Parents executed a consent form and new assessments were obtained at this time. Tr. at 74. In furtherance thereof, updated psychological and educational evaluations were conducted, along with a new social history and classroom observation. Exhs. 15-17, 23-26. Report cards and progress notes from [REDACTED] were similarly marshalled in preparation for the proceedings. Significantly, the Parent withdrew her request for a Functional Behavior Analysis (hereinafter “14”). Moreover, a speech assessment was deemed unnecessary as the child was not receiving speech services, a District determination to which the Parents did not object. Tr. at 78. As with the CSE convene of April 28, 2017, personnel from [REDACTED] participated in the proceedings along with [REDACTED], M.D., the child’s psychiatrist. Dr. [REDACTED] provided information regarding [REDACTED] and his medication regime. Tr. at 79. A report from psychologist and [REDACTED] was also obtained telephonically.

[REDACTED] testified that, once again, he chaired the CSE convene for [REDACTED] Based upon the documentation referenced above as well as input from the Parents’ and [REDACTED] teachers, the CSE began its deliberations. Minutes of the proceedings were, thereafter, incorporated into the IEP document, itself. Exh. 2 at 1-6. Based upon the information presented, [REDACTED] classification of “[REDACTED]” remained the same as the record was replete with references to the student’s inability to focus, attend and deliberate. Tr. at 85-86.

[REDACTED] additionally noted that he had retained evaluative information from prior school years within the April 20, 2018 IEP as he believed the historical perspective would underscore the student’s strengths and deficits. Tr. at 88. Referencing the section of the 2017-2018 and 2018-2019 IEPs entitled, “Effect of Student Needs on Involvement and Progress in the General Education Curriculum...” the witness suggested that the 2018-2019 document offered a clearer statement as to how [REDACTED] impacted his academic performance, although both documents describe an [REDACTED] and distractible student with [REDACTED] deficits. As a result of these issues, the CSE determined on both occasions that [REDACTED] required a structured environment in which special education methodologies and techniques were utilized. Tr. at 89.

Although [REDACTED] described the 2018-2019 IEP as a “reaffirmation” that [REDACTED] continued to exhibit [REDACTED] functioning, several new goals were articulated. As the student would now be articulating into the District’s high school, the CSE believed [REDACTED] would require more specific study skills strategies to facilitate his ability to cope with greater academic demands. Similarly, the student’s social goals now included a specific goal addressing social conflict and the use of positive strategies to resolve disputes. Supplementing many of the same assessments available at the 2017-2018 IEP convene, the CSE had obtained, inter alia, an additional [REDACTED], an updated [REDACTED] and an [REDACTED]. Exhs. 23- 29. Among the key issues addressed at this meeting, [REDACTED] believed Dr. [REDACTED]’s Independent Education Review underscored the need to view [REDACTED] full-scale IQ within the context of his [REDACTED] and lack of focus. Tr. at 129. The witness reiterated the Parent’s concern that the elevated levels or distraction inherent in any large public-school environment would exacerbate [REDACTED] [REDACTED]s, negatively impacting his ability to access an education. Tr. at 131: Exh. 2 at 3.

In reading, the student’s goals remained largely the same, although grade level criteria was increased. For example, the witness noted that a goal for reading fluency now specifically alluded to grade nine content areas. While criteria for success remained static - consistently at 80% - [REDACTED] testified that it was important for the student’s IEP to reflect regent’s level literature and materials. Tr. at 91. Similarly, the student’s writing goals remained nearly identical with the exception of greater criteria as a measure of achievement. Tr. at 92-93. In math, two out of three goals are identical, and their criteria remain the same. However, a previous goal addressing fractions was discontinued and replaced with a goal focusing on automaticity of multiplication facts.

As for the 2018-2019 program modifications, the witness did not recall any significant changes. However, he did note that a new provision mandating a weekly email or phone communication with the Parent in order to ease [REDACTED] transition back to District. Tr. at 98; Exh. 2 at 20. Beyond this, a provision offering books on tape or the use of recording devices was integrated into the IEP as a means of supporting grade level content area material for [REDACTED]. A final accommodation included the use of an [REDACTED]. Although the student did avail himself of this at [REDACTED], the CSE was concerned that the student’s focus would be compromised in a larger environment with less support. As a result, an auditory processing consultation at the beginning of the school year was mandated. Tr. at 99; Exh. 2 at 20-21. In sum, [REDACTED] opined that the April 20, 2018 IEP would have served [REDACTED] well by virtue of its smaller classes, daily reading support, counseling and integrated co-taught science class, along with opportunities for meaningful mainstreaming. Tr. at 100-101.

Following the April 20, 2018 CSE, the Parents requested an independent evaluation, a request granted by the District. As [REDACTED] had previously evaluated [REDACTED], she was again selected to conduct the assessment. Tr. at 31, 34. The evaluation, received by the District on November 28, 2018 was thereafter addressed at the spring 2019 CSE convene. [REDACTED] noted that that there had been no need to reconvene a CSE to address [REDACTED]’s November 2018 report as the IEP already reflected the accommodations and testing modifications it had recommended. Similarly, it did not alter the student’s diagnosis or classification. It did, however, reinforce Dr. [REDACTED]’s opinion that [REDACTED] testing was highly sensitive to the student’s [REDACTED], a caution to drawing conclusions about [REDACTED] IQ at any one point in time. Tr. at 135; Exh. 34.

Based upon the CSE’s discussion, two significant changes were made to [REDACTED] program. At the outset, an integrated co-taught class was recommended for science as this was a strength for the student. The second change reflected the addition of a daily small group reading class. As [REDACTED] continued to struggle with higher order reading skills such as inferencing, drawing conclusions, comprehending informational text and maintaining fluency, it was determined that a special class offered daily would support the student’s ability to function academically.

Ultimately, [REDACTED] testified that, while he did not specifically poll the CSE, the lack of disagreement during the proceedings led him to believe the CSE had agreed with the District’s IEP. He noted that there was no objection to the program, nor was there disagreement with the related services, accommodations and test modifications. The witness disagreed that the 2017-2018 and 2018-2019 IEPs were essentially the same, pointing out that the 2018-2019 document provided for an integrated class in science, daily small group reading classes, weekly communication with the Parents, the use of books on tape and an assessment for an [REDACTED]. Rather, he believed the Parents agreed with the small class recommendation but differed as to site location, to wit: a large public school such as the District’s. Tr. at 132-134; Exhs. 1, 2.

On cross-examination, [REDACTED] described an end of year classroom visit by [REDACTED] to the District. He did not recall which specific classes the Parent had visited. Although several data sheets were submitted into evidence,^[1] the witness was uncertain whether these had been shared with the Parent nor was he familiar with them himself. Exhs. 35-38. He observed that the Parents had cooperated with the CSE process, authorized assessments and shared their own evaluations when available. They did not object to the District’s effort to obtain [REDACTED]’s records or to engage [REDACTED]’s personnel at the CSE. Tr. at 136. Nevertheless, he did not believe it was necessary to include [REDACTED]’s 2016 evaluation in the April 2017 CSE convene as there was already sufficient current documentation regarding [REDACTED] functioning. Tr. at 137. Finally, [REDACTED] vaguely recalled the [REDACTED]’s concern about elementary school bullying and the stigmatization of being a special education student in a mainstream population. Tr. at 139-140.

The witness acknowledged that while the Parents were very engaged in the CSE process and had cooperated fully with the District, he did not believe they seriously intended to re-enroll [REDACTED] in their schools. Given the Parent’s remarks at the CSE convene, [REDACTED] opined that the Parent seemed to be participating in classroom observations at the advice of counsel. Tr. at 142. Although 1 did, in fact, participate in classroom observations, he contrasted her [REDACTED] with other families whose children had re-entered the District’s schools, remarking that the Parents did not request information from the District’s guidance counselors or discuss potential programming. Although a transition plan might have been developed with the student’s case manager, counselor or psychologist, the witness did not recall any substantive discussions about this. However, [REDACTED] opined that reintegration into the District in grade nine was ideal as all the students would be making a transition into a new high school. Exh. 2 at 4.

[REDACTED] additionally testified on behalf of the District. He has been employed by the District since 2001 where he has been assigned exclusively to the middle school. He is certified to teacher special education, grades K through 12 and has served as the special educator in both integrated and special education classes. He has never met [REDACTED], taught [REDACTED] nor observed the student at [REDACTED]. Tr. at 234-236. During the 2017-2018 school year, [REDACTED] taught several self-contained math and science classes ranging from grades six through eight. He noted that the classes reflected grade appropriate [REDACTED] State common core curricula, but did not necessarily cover all topics, a strategy designed to slow the pace of instruction while ensuring the main subjects were addressed. Tr. at 188-189. He described the student cohort as average to above average in intelligence but demonstrating deficits in [REDACTED] function or working memory. Tr. at 190. Describing the [REDACTED] profile for his students, he indicated that some children were school phobic while others demonstrated a lack of engagement with attentional lapses. Nevertheless, the witness noted that all students were “pretty close to being on grade level.” Tr. at 190.

During the 2017-2018 school year, [REDACTED]’s class was capped at a 15:1:1 ratio. In reality, however, the witness’ math class had two to four students and his physical science class (a combination of seventh and eighth graders) had approximately ten. [REDACTED] additionally taught a daily academic learning lab support class reflecting a 2:1:1 pupil: personnel paradigm. Tr. at 191-192.

The witness indicated that he attended a CSE convene for [REDACTED] in April 2017. Although he had never met the student, he opined that [REDACTED] strengths and weaknesses were aligned with the students in his classes. He described [REDACTED] as a [REDACTED] intact student who struggled with [REDACTED] function. On a concrete level, organizing, prioritizing and preparing assignments was a challenge. In addition, [REDACTED] demonstrated substantive deficits with math word problems and fractions. In a social context, the student did not always recognize social cues or respond appropriately when frustrated.

Had [REDACTED] attended a District school during the 2017-2018 school year, [REDACTED] testified that he would have been his math, science and learning lab teacher. As his proposed instructor, the witness opined that [REDACTED] educational and social/emotional needs were consistent with the classroom profile. Tr. at 195, 199. For example, in reviewing the child’s 2017-2018 IEP, 22 testified that the IEP math goals corresponded with his own math curriculum^[2] that year. As a corollary, he believed the goals appropriately reflected [REDACTED] specific needs as set forth in the IEP document.

The witness then elaborated upon the IEP’s use of “portfolio materials” as a means of assessing academic progress. He described the various paper and on-line textbooks along with the work packets completed by the student. On a biweekly basis, [REDACTED] indicated that he would review the number of problems completed by the individual student, checking for the use of key words, and developing percentages for the number of problems attempted versus the number of problems successfully completed. Tr. at 272. He did not recall whether the manner in which goals were measured had been discussed at the CSE convene.

Beyond the initial in-class instruction, the learning lab provided students with an opportunity to reinforce content area skills daily. In this manner, material could be repeated, re-explained and practiced individually, addressing the particular needs of [REDACTED] Tr. at 200. Study skills are underscored in learning lab to facilitate organizational abilities, test preparation and homework assignments. In particular, [REDACTED] stressed the use of a long-range planner, study schedules, highlighting specific steps inherent in developing a study plan and logging their time. Exhs. 36, 37.

While the witness indicated that he would not have been [REDACTED] reading or ELA teacher, these literacy skills would, additionally, be supported in learning lab. For example, writing assignments from English class would be initiated in learning lab with brain storming techniques and sentence starters. Proofreading checklists would then facilitate the editing process. In this manner, [REDACTED] would be forced to review his writing and determine whether he had answered the question appropriately, both substantively and in terms of syntactical format.^[3] Similarly, although the witness would not have been [REDACTED] reading teacher, he concurred with the fluency goal articulated in the April 2017 IEP. He based his opinion upon material submitted by [REDACTED] which indicated a relative weakness in oral decoding when compared with the student’s comprehension skills. Tr. at 218; Exh. 1 at 8.

With regard to the use of a positive [REDACTED] plan, the witness described a reward system attached to individualized and specific target [REDACTED]s for each student. The [REDACTED]s are developed in concert with narrative information within the IEP, anecdotal and observational information. Tr. at 220-221. The data is collected four to five times a day, entered into an Excel spreadsheet and then evaluated empirically as to efficacy of programming. Tr. at 222-228; Exh. 38. Team meetings are held several times a week to ensure currency and integrity of the child’s goals. Finally, the [REDACTED] chart is then shared with parents on a weekly basis at a minimum. As a result of the classroom-wide [REDACTED] plan, a separate [REDACTED] plan (hereinafter referenced as a “[REDACTED]”) for [REDACTED] was unnecessary. Exh. 1 at 11.

On cross examination, [REDACTED] acknowledged that he did not share any data sheets with the CSE in April 2017, nor did he offer any to [REDACTED] during her classroom observation. He did, however, discuss the use of the point sheet as a [REDACTED] tool at the 2017 IEP convene. Tr. at 236; Exh. 38. He further noted that the Parent was ambivalent about the use of a token economy as a classroom management technique, suggesting that [REDACTED] might find this punitive. Tr. at 238, 240. Finally, in the event that a student did not receive any points toward a reward, [REDACTED] indicated that the goals might be re-assessed and redrafted. As such, he noted that the goals are fluid and reflect the philosophy of building upon success. Tr. at 277-279. [REDACTED] agreed that there was no scientific basis upon which he had developed his 23 sheets other than his knowledge and experience as a special educator.

Ultimately, the witness believed the small classes, special education modifications, daily study skills reviews and organizational strategies utilized within his classes would enable [REDACTED] to make progress in District. He based this opinion upon a review of the student’s records at 5 as well as the CSE deliberations. Nevertheless, he did recall various concerns articulated by the Parents at the 2017 CSE convene. Beyond the possibility that [REDACTED] would view a [REDACTED] plan as punitive, they were apprehensive about[REDACTED]being stigmatized as a special education student in a mainstream environment. Likewise, the Parents were anxious about class size, distractibility within the environment and the level of homework [REDACTED] would receive.^[4] Although they were pleased with the academic and social growth [REDACTED] had demonstrated at [REDACTEDD], the Parents did not believe [REDACTED] would progress were he to attend a District placement. Tr. at 255. As a result, [REDACTED] testified that they rejected the proposed IEP at the end of the proceedings. Tr. at 255.

Following the CSE meeting, the witness testified that the Parent visited his math class and observed a social studies class. [REDACTED] noted that he would have responded to any of [REDACTED]’s questions as he did not have a particular agenda in describing his classroom. However, he did not recall any discussion of stigmatization, the classroom-wide [REDACTED] plan, instructional techniques, school size or reading. Tr. at 259-261. The Parent did, however, express concern about the distractions posed by students leaving and entering his classroom in the course of the instructional period. The witness explained that this was not uncommon as some students are entitled to movement breaks and others may be returning from another classroom. Tr. at 261.

On cross-examination, the witness described the various classifications present within his classroom profile. He indicated that, on occasion, there have been students classified as emotionally disturbed. Nevertheless, those students with emotional disturbance classifications demonstrated many of the same learning traits as [REDACTED], to wit: [REDACTED] functioning deficits, [REDACTED] and distractibility. Tr. at 281-282. The witness has rarely had a student with a [REDACTED] and has never had a student who suffered from [REDACTED]. In past years, he has had students with [REDACTED], although this was not the case for the proposed 2017-2018 classroom recommended for [REDACTED]. Although, some students are disruptive in the sense that they behave [REDACTED], none are [REDACTED] disordered. Tr. at 262-265. Having so testified, [REDACTED] indicated that had the student been placed in District, the classroom cohort would have included several students like [REDACTED] reflecting [REDACTED] such as [REDACTED] disorders. He believed, however, that [REDACTED] would have been the only student with [REDACTED]. Tr. at 269-270.

[REDACTE] additionally testified on behalf of the District. [REDACTED] is both an ELA and [REDACTED] instructor, positions she has held for the past ten years in District. The witness is permanently licensed by [REDACTED] State to teach special education K-12 and is additionally certified as a [REDACTED] reading instructor. Tr. at 292. [REDACTED] briefly described the [REDACTED] methodology as an empirically established, research based [REDACTED] approach to phonics and reading.

Pursuant to the [REDACTED] dated April 26, 2016,[REDACTED]was diagnosed with [REDACTED]. Standardized scores yielded deficits in oral reading fluency, word reading and spelling. Exh. 7, passim. Based upon [REDACTED]’s assessment and others, it was clear that [REDACTED] would benefit from a phonics-based reading program. During the 2017-2018 school year, [REDACTED] would have been assigned to her [REDACTED] class. The witness testified that she had two classes that year. One was comprised of two children, the class to which [REDACTED] would have been assigned. As the third child in this class, [REDACTED] deficits in decoding, encoding, general fluency and written output, along with his distractibility and intact [REDACTED] abilities were consistent with the two-student profile. Tr. at 299. The other class had one child.

[REDACTED] described her protocol for developing reading proficiency utilizing [REDACTED] methodology. Succinctly stated, students begin by reviewing sounds. Sounds were then blended into words and words were strung together eventually into sentences. The second instructional component of [REDACTED] reflects encoding, spelling and writing. Referencing the 2017-2018 IEP’s reading goals, [REDACTED] noted that she performs ongoing fluency checks and bases her next lesson upon the rates obtained. As the student’s IEP reading goals reference content area vocabulary, the witness indicated that she would work collaboratively with [REDACTED] to acquire key words. She would also assess the student’s fluency in other academic areas to ensure knowledge of content related vocabulary. In sum, she believed the 2017-2018 reading goals for [REDACTED] were appropriate, observing that [REDACTED] was additionally addressing the same issues through its Great Leaps Program. Tr. at 303; Exh. 1 at 8.

The witness testified that she participated in the 2018-2019 CSE convene for [REDACTED] and reviewed the documentation set forth in the April 20, 2018 IEP. Exh. 2. [REDACTED] noted that this included [REDACTED]’s evaluation, various report cards and a progress report, an education evaluation and a psychological assessment. Tr. at 308; Exhs. 7, 23, 5, 27. The witness acknowledged that she had no personal knowledge of [REDACTED] nor was she personally familiar with [REDACTED]. Tr. at 310-312. She had no recall of the observation conducted by Mr. [REDACTED] and had minimal recall of the April 2018 CSE convene. Tr. at 315. Similarly, the witness did not recall discussing [REDACTED]’s independent evaluation. Exh. 26. Although [REDACTED] did not remember many specifics of the meeting, she did recall that the convene “was long” and that significant time was spent addressing [REDACTED] proposed schedule. Tr. at 320.

[REDACTED] additionally testified on behalf of the District. [REDACTED] has been a special education teacher within District since 2007 and is currently assigned to their high school. [REDACTED] is certified in special education K-12; she holds an advanced degree from the Bank Street College of Education and has completed extensive coursework on various educational topics including [REDCTED], a Visualization and Verbalization program. Tr. at 362-363. She noted that [REDACTED] is a research-based reading program which is designed for direct instruction, teacher modeling, guided practice and independent practice. Progress is measured through Lexile levels, a measurement of reading proficiency based upon word difficulty and sentence structure.

During the 2018-2019 school year, [REDACTED] taught ninth grade self-contained English classes, a support class and a [REDCATED] period. At most, there were 7 students in [REDACTED]’s class; her support and [REDACTED] classes had six. The witness described the various student classifications in her ELA classroom. These included students with [REDACTED], speech and language deficits and students with [REDACTED] deficits (e.g., organizational, attentional).^[5] The students were [REDACTED] intact, ranging from average to slightly below average intelligence. While some students might be distractible and [REDACTED] on occasion, none exhibited [REDACTED] problems which could not be managed within class. Tr. at 409. She was familiar with [REDCATED], having reviewed his records, attended his CSE convene and meeting with 1 during a classroom observation. Tr. at 366; Exhs. 24-27. Had[REDACTED]attended public school in District, 30 testified that [REDACTED] would have been his English 9, [REDACTED] and support teacher. She did not, however, attend the CSE convene for the 2018-2019 school year.

The witness described the [REDACTED] program and the training she received from Scholastic.^[6] The [REDACTED] program is a [REDCTED] protocol which addresses higher order comprehension skills such as reading for detail, summarizing, identifying main ideas, understanding character development and recognizing and understanding various literary elements. She noted that the training occurred over several days followed by coaching sessions in which Scholastic personnel made on-site visits, observed her class and reviewed student reports. Tr. at 395-399. [REDACTED] indicated that there is ongoing communication between her and Scholastic representatives in addition to continuing training throughout the year. The witness observed that there is, moreover, a computer component to [REDACTED] in which individual headsets and tape recorders provide aural feedback. This enables the virtual coach to obtain actual data as to the student’s skill set and to offer appropriately leveled materials. As a corollary, fluency, spelling and writing are reinforced.

Based upon the student’s record,^[7] the witness described a student who struggled with [REDACTED] functioning skills, organization and time management. Academically, he required a multisensory approach with scaffolding and chunking of materials. On a management level, [REDACTED] required frequent redirection and refocus. In reading, the student exhibited challenges with comprehension and fluency. As his writing skills could similarly be disorganized, [REDACTED] felt that graphic organizers would facilitate his ability to stay sequenced, relevant and on-topic. She noted that [REDACTED] demonstrated similar deficits with math fluency and related arithmetic skills. Tr. at 369-370. Nevertheless, the witness acknowledged that she had never meet the student and had only spoken to [REDACTED] personnel within the context of the 2019-2020 CSE meeting.^[8]

Based upon a review of [REDACTED] academic profile, [REDACTED] opined that [REDACTED] was very similar to the students in her classes and would benefit from the structure and modifications she has incorporated into her classes. In furtherance thereof, she noted that she and her teaching assistant break down assignments, stress organization by scheduling easy deadlines with check-ins and maximize engagement by enabling book choices during [REDACTED]. Student focus is encouraged with current events materials^[9] which are tailored to the student by Lexile, enabling all students to access a topic by reading level. For those students who benefit from aural presentations, classroom technology is available to read back material as students complete writing assignments or where students need reading material presented auditorily. Tr. at 372. [REDACTED] further described the use of ICE graphic organizers, a system in which students introduce a position, cite the actual text which supports their position and explain the quote they have chosen. In fact, she noted that [REDACTED] was also addressing this skill as a means of developing higher order comprehension skills. Tr. at 373; Exh. 2 at 13.

The witness observed that classroom instruction is accompanied by PowerPoint presentations and that all material is presented in packet form so that loose pages do not become an issue. Scaffolded notes are presented on the PowerPoint, enabling efficient notetaking. As [REDACTED] would have been assigned to [REDACTED]’s support class, she would have additionally served as his case manager. As such, she is responsible for IEP implementation and ensuring that all study skills, reading, writing and math goals are addressed. Her duties include interfacing with teachers, following up on missing assignments and addressing management needs, both [REDACTED] and academic.^[10] Tr. at 375. Lastly, [REDACTED] is responsible for parent communications and serves as [REDACTED] “point person.”

Reviewing the child’s study skills goals, the witness testified that they were all consistent with deficits articulated in the student’s April 2018 IEP. Similarly, she concurred with reading goals addressing fluency and higher order skills referent to summarizing materials and citing text. The witness additionally opined that the writing goals were aligned with [REDACTED] present levels of performance as articulated within [REDACTED] assessments and the input of [REDACTED] personnel. In math, [REDACTED] noted that multi-step operations would be challenging for a student with [REDACTED] deficits and, for this reason, she believe the use of key words would cue him to the correct mathematical process. Finally, she believed that goals addressing [REDACTED] lack of fluency and automaticity with multiplication remained appropriate. In general, [REDACTED] noted that District assessments, private evaluations and [REDACTED] teacher reports were congruent in terms of the child’s deficits and the skills being addressed. Tr. at 378.

Finally, the witness described the use of a home-based classroom to which the student can always come in the event that they are emotionally over-whelmed. Teacher support is always available in this classroom and, when necessary, more intense services can be obtained. Tr. at 380-381.

At some point in 2018, [REDACTED] testified that the Parent visited her global classroom, but she had no recall of any conversation. Specifically, there was no discussion of educational materials or methodologies, assignments deadline check-ins, [REDACTED] or [REDACTED]. Tr. at 406-408. She further testified that the Parent did not ask questions. Tr. at 424-425, 426. Lastly, on cross-examination, [REDACTED] opined that one of the technologies recommended by Dr. [REDACTED], to wit: [REDACTED] had been eclipsed by [REDACTED] software and, therefore, would not have been optimal for [REDACTED] Tr. at 422. In furtherance thereof, she believed technology which was ubiquitous and easily blended into the environment (i.e., smart phones, I-pads) were more apt and less stigmatizing. Tr. at 422-423. Similarly, the witness questioned certain classroom management techniques for [REDACTED].^[11] In sum, [REDACTED] testified that she believed the District program for [REDACTED] would serve his needs appropriately.

[REDACTED] State certified school psychologist who testified on behalf of the District. She has been employed by the District in this capacity for 12 years, eleven of which have been at the high school. As a school psychologist, Ms. [REDACTED] participates in CSE convenes, conducts and interprets assessments, constructs [REDACTED] and management plans and offers counseling and referrals. Ms. [REDACTED] has never met [REDACTED] nor has she observed him. She has never visited [REDACTED]. Her knowledge of [REDACTED] is based upon statements made by [REDACTED] personnel and [REDACTED] at the April 20, 2018 CSE convene. Tr. at 462.

On April 20, 2018 Ms. [REDACTED] participated in a CSE convene for [REDACTED] as District psychologist. In furtherance thereof, the witness denominated a number of documents, among others, which she reviewed in preparation for the proceedings. Exhs. 7, 17, 24-27, 29. In particular, Ms. [REDACTED] recalled interpreting the results of a psychological evaluation administered by the District’s [REDACTED] in addition to discussing [REDACTED] [REDACTED]/emotional function. Tr. at 432-435.

Referencing Ms. [REDACTED] report, the witness noted that [REDACTED] demonstrated weaknesses in the areas of fluid reasoning, working memory, visual working memory and processing speed. As a result of these deficits, Ms. [REDACTED] testified that [REDACTED] ability to fluently read, write or perform math operations would be impaired. [REDACTED] processing issues would additionally have an impact upon how long it would take to complete assignments and manage time. In furtherance thereof, the witness indicated that deficits in processing speed could facilitate memory decay and the ability to access information. Tr. at 437-438.

The witness additionally testified that deficiencies in fluid reasoning would exert an impact on reading comprehension, problem solving in math and the ability to generalize or make comparisons. Tr. at 438. Finally, Ms. [REDACTED] discussed the consequences of poor visual working memory, a deficit which would interfere with the ability to read visual multi-step directions, sequence visually and identify the necessary steps inherent within math problem solving. Although the student was [REDACTED] intact, Ms. [REDACTED] opined that [REDACTED] testing performed by Ms. [REDACTED] may have been compromised by [REDACTED] [REDACTED], rendering an artificially low score. Tr. at 440-441. Considering [REDACTED] response style and the variability between index scores, Ms. [REDACTED] advised caution with regard to interpreting test scores, an opinion with which Ms. [REDACTED] concurred. Tr. at 441. Having expressed this concern, Ms. [REDACTED] testified that the Ms. [REDACTED] testing had more appropriately focused upon the sub-test variability and the individual scores rather than the full-scale IQ. In this manner, the sub-tests would “paint a fuller picture of the student’s [REDACTED] abilities.” Tr. at 490-491.

Consequently and, as a result of this variability, the witness indicated that she had agreed with Ms. [REDACTED] use of the [REDACTED] (hereinafter “[REDACTED]”) and its ancillary index areas as this measure of intelligence is less sensitive to the fluctuations of working memory and processing speed than the Full-Scale IQ. Tr. at 441; Exh. 23 at 7. In this manner, the [REDACTED] removes the effects of working memory and processing speed to provide a better indicator of cognition when it is not impaired by these ancillary factors. Tr. at 442.

Ms. [REDACTED] additionally expounded upon the value of Ms. [REDACTED] use of the [REDACTED], ^[12] and her use of supplemental projective questionnaires offered to the student and to [REDACTED]^[13] At the outset, the witness noted that the [REDACTED] is a measure of [REDACTED] function. In particular, Ms. [REDACTED] had utilized the inhibition subtest which assesses one’s ability to control automatic responses. The inhibition subtest specifically addresses inhibitory control, [REDACTED] flexibility^[14] and response fluency. It is, additionally, a tool which indirectly measures attention and working memory. Ms. [REDACTED] observed that [REDACTED] yielded depressed scores, indicating clear inhibitory weaknesses. Tr. at 444-445; Exh. 23 at 13. These weaknesses would exert an impact upon the student’s academic ability to plan, organize, manage one’s time and shift from task to task. Emotionally, the ability to self-monitor and control emotions would be impaired, likely evolving into unsatisfactory social relationships. In fact, Ms. [REDACTED] indicated that both [REDACTED] personnel and [REDACTED] recognized [REDACTED] ongoing social struggles. Tr. at 448-449, 452-453; Exh. 2 at 14, 18; 27 at 1. As a result, Ms. [REDACTED] developed IEP social goals and recommended individual and group counseling on a weekly basis. In this manner, the clinician hoped to identify clear areas of social conflict and appropriate social strategies which offer positive outcomes.

The witness additionally indicated that she had spoken with Ms. [REDACTED] with regard to the protocols utilized by [REDACTED] in her November 23, 2018 report. Specifically, Ms. [REDACTED] voiced her concern about several issues. These included [REDACTED]’s failure to honor time limits and discontinue rules. She further indicated that the clinician had not included verbatim responses as required. Ms. [REDACTED] noted that [REDACTED], the independent psychologist, did not use [REDACTED] correct age in computing scores and testified, “It seems that her raw scores are incorrect based on the responses that she indicated [REDACTED]. provided.” Tr. at 467. A particular area of concern reflected the discrepant processing speeds referenced in [REDACTED]’s November 2018 evaluation with the “extremely low” score obtained by Ms. [REDACTED] approximately one year earlier.^[15] Exh. 23, 34. Ms. [REDACTED] opined that the discrepant scores in processing and fluid reasoning might reflect [REDACTED]’s testing protocol, [REDACTED] attentional function and/or his motivation. Tr. at 494-495.

Referencing the testing performed by [REDACTED], Ms. [REDACTED] observed that [REDACTED] exhibited no areas of [REDACTED] deficit, with strengths in his fund of knowledge and working memory. Exh. 34 at 3-4. In fact, measures of working memory and [REDACTED] processing appeared higher in [REDACTED]’s 2018 report when compared to her 2016 assessment. In contrast, the 2016 report reflected stronger scores in the student’s [REDACTED] function and math fluency. Finally, the witness noted that [REDACTED]’s 2018 evaluation indicated that, “no emotional barriers to learning were evident.” Exh. 34 at 12, 17. In sum, while the witness indicated that she had reservations about the scores reported by [REDACTED], she believed appropriate test protocol had been observed during Ms. [REDACTED] assessment.

During the 2018-2019 school year, Ms. [REDACTED] provided counseling services to students at the District’s high school. Some of these students were cohorts of [REDACTED]’s ninth grade self-contained classes. Like [REDACTED], Ms. [REDACTED] testified that, “... some of that cohort [the counseled students] also struggled to navigate social exchanges, to interpret particularly nuanced social interactions, they need help kind of building on some of the foundational [REDACTED]. In addition, some of them also struggle to identify and appropriately manage negative emotions.” Tr. at 454.

In sum, Ms. [REDACTED] participated in the CSE convene, interpreted Ms. [REDACTED] psychological report, described the manner in which Parent training and counseling was provided, offered an educational accommodation in the form of books on tape and, most importantly, underscored the rationale for placing [REDACTED] in an integrated science class. Tr. at 464.

The Parents’ Case and Summary of Witness Testimony

[REDACTED] is the mother of [REDACTED] [REDACTED] is an [REDACTED], licensed to practice in [REDACTED] State. She described her son as an active child who, by elementary school age, required medication and accommodations^[16] to address his hyperactivity in school. Thereafter, following the closure of [REDACTED] local school, [REDACTED]’s son articulated into a larger placement with children he did not know and who ostracized him. By fifth grade, [REDACTED] was officially diagnosed with [REDACTION] in addition to [REDACTED]. The Parent testified that her son’s [REDACTED] frequently led to disciplinary actions and self-isolating [REDACTED]. As the educational situation within District deteriorated for [REDACTED], the Parents sought out a small educational environment which could address their son’s needs in a more nurturing environment. Thereafter, [REDACTED] began attending [REDACTED] where he remained for sixth, seventh, eighth and ninth grades. Tr. at 531-539.

The Parent testified that she has been pleased with [REDACTED], referencing small instructional groups whose learning profiles were similar to her son. She opined that accommodations are frequently unnecessary as personnel are specifically tailoring their instruction to the student’s individualized learning needs. She also valued [REDACTED]’s use of a daily [REDACTED] teacher, an individual who additionally functioned as “point person.” Tr. at 540. In this manner, content teachers interface with the [REDACTED] teacher to discuss any issues - academic, [REDACTED] or emotional- which are exerting an impact upon the student’s ability to succeed. [REDACTED] is also aware of this individual’s role as student advocate, intermediary and support. Significantly, [REDACTED] had become more independent with his homework, and [REDACTED]’s involvement as the “homework police” was now minimal. Tr. at 580. The Parent observed that she also received daily email communications which enabled her to remain current with [REDACTED] programming and the expectations staff had for her son.

The Parent noted that she had first arranged a private [REDACTED] consultation with [REDACTED] in 2016. [REDACTED] had transitioned to [REDACTED] and the Parents were seeking independent feedback as to their son’s ability to function within the new academic environment. Although the student continued to exhibit considerable distractibility and [REDACTED] “[REDACTED]” at this time, [REDACTED] opined that the Parents had placed [REDACTED] appropriately. Exh. K.

On April 28, 2017, the Parent participated in a CSE review. While she did not recall any District reports, she did recall submissions by Drs. [REDACTED] as well as [REDACTED]. Tr. at 555. Similarly, the witness recalled a review of [REDACTED] accommodations and modifications. As she had not participated in the formulation of any of the goals, she could not state whether or not she had agreed with them. The Parent additionally recalled a discussion of the proposed [REDACTED] reading program and the possible need to transition [REDACTED] to a new reading methodology. Finally, the Parent was uncertain as to the manner in which counseling would be provided. When compared with the seamless manner in which support was offered at [REDACTED], [REDACTED] expressed concern about the stigmatization a separate counseling room might provoke.

In contrast, she opined that [REDACTED] no longer required this service. Tr. at 591. She noted that, as per [REDACTED], [REDACTED] teacher that year, her son had made significant social/emotional progress during the year. Although his ability to navigate the social landscape continued to be an area of need, [REDACTED] was more open to suggestions and constructive comments. Tr. at 579. He had also developed a cohort of friends who shared an interest in technology. [REDACTED] was learning to identify alternative social perspectives and [REDACTED] strategies, both of which were facilitating his ability to function more successfully in a social context.

Nevertheless, although the Parent had not seen the proposed program, she rejected the IEP at the end of the meeting. Tr. at 557-558. In furtherance thereof, she explained her concern that [REDACTED] would be transitioning back to students who had ostracized and bullied him along with District personnel whom she believed had treated her son unfairly. The Parent was additionally concerned about the impact of a full schedule of self-contained classes upon [REDACTED]. [REDACTED] described an inarticulate child who became frustrated by his inability to self-advocate effectively, a scenario she believed had led to his marginalization within the classroom. Tr. at 559-563. Beyond this, [REDACTED] objected to the [REDACTED] plan utilized by teacher [REDACTED] as she felt it would be “punitive” for[REDACTED]Tr. at 582. Finally, the Parent did not believe [REDACTED] would be able to cope with the noise and stimulation inherent within a large public-school environment.

After several scheduling delays, however, the Parent did make an on-site visit to [REDACTED]’s classroom. She noted that the class was small and that the light had been dimmed. As the room was a “science type classroom” there were many distracting features about the room.^[17] In the middle of class, another student walked in and began working on the computer, a situation she felt was highly distracting. Tr. at 565, 595.

The Parent additionally visited a second class. Although the pupil: personnel ratio was small and the students seemed appropriately engaged in a word game, other students were exiting and entering the classroom all period long as there was another classroom in the rear of the history classroom. Tr. at 596. 1 testified that she then rejected the IEP a second time. As previously, she was concerned about the distractions posed by a large public-school environment, the impact of a full schedule of self-contained classes upon [REDACTED] and the punitive nature of [REDACTED]’s classroom [REDACTED] plan. An additional concern involved the placement of student lockers near the special education classrooms, a situation she believed could easily lead to identification and stigmatization of the special education students. Tr. at 586.

In the early part of 2018, the Parents contacted [REDACTED] to conduct an updated classroom observation of [REDACTED] Tr. at 606-607; Exh. 26. At this time, many of the improvements observed by the Parents at home, were confirmed by [REDACTED] at school. Specifically, some dysfunctional attention-getting [REDACTED]s were completely extinguished while others now occurred at low frequency levels. In general, [REDACTED] had developed more appropriate [REDACTED], felt included by his peers and was more on-task.

On April 20, 2018, the CSE convened. The Parent had a limited recollection of the proceedings but did note that there was some discussion about Mr. [REDACTED]’s observation and Ms. [REDACTED] psychological assessment. She did recall, however, that [REDACTED], [REDACTED]’s Dean of Students, contributed to the discussion, both agreeing that [REDACTED] had made meaningful progress. She did not recall any discussion of [REDACTED] goals but did acknowledge that a foreign language exemption had been discussed. Tr. at 615-617. Although counsel for the Parents again rejected the IEP following the CSE convene, 1 indicated that she wished to observe the proposed program in the event that the District could now provide the environment and services she believed[REDACTED]required. Tr. at 620-621.

At this time, [REDACTED] visited a self-contained classroom which she described as “extremely depressing.” She testified that, although it was a small class, the students were working in small groups and there was minimal interaction between the students and teacher. A student in the rear of the room was behaving disruptively. Tr. at 622. As for the second class observed, an integrated math class, [REDACTED] noted that there were approximately 20 children in the class, a setting which she believed would be overwhelming for her son. Although the Parent indicated that she would have liked to observe a reading class, the observations had occurred too late in the year to arrange this. As a result, she had requested but not seen a reading class for two years in a row. Tr. at 633. The Parent additionally noted that, for some reason, the District had scheduled observations of classrooms in which the students were far more impaired that [REDACTED]. Tr. at 634. She had not asked [REDACTED] if these would have been [REDACTED] classes but assumed they would be. Following her classroom observations, [REDACTED] reiterated her rejection of the District’s program. Nevertheless, she indicated that [REDACTED] really wanted to return to District so that he might participate in varsity sports and avail himself of the traditional “high school” experience. Tr. at 628-630.

3 attended 5 during the 2017-2018 and 2018-2019 school years. 1 indicated that 5’s feedback via oral and written reports was positive and she was pleased with her son’s progress. She noted that [REDACTED] distractibility had settled down and he had developed positive social relationships with his peers. On an academic level, her son was managing his schoolwork and implementing compensatory educational strategies more independently. She described [REDACTED] eighth and ninth grade experiences at 5 as positive ones, recognizing that although her son would continue to have academic and social/emotional struggles, he could nevertheless acquire the coping skills to meaningfully address them.

Steven 39 testified on behalf of the Parents. Mr. 39 is certified by 38 State as a multi-disciplinary special and general education instructor. He is employed by 5 and served as [REDACTED] 38 teacher for one year. As a 38 teacher, Mr. 39 testified that he functioned essentially as a team leader, coordinating contact between parents and content teachers. In addition, he would coordinate the student’s daily activities, offer 51 strategies and provide individualized academic/social-emotional support for one period per day. It was Mr. 39’s responsibility to maintain weekly communications with the Parents in addition to supplemental communications as needed. The student’s teacher described[REDACTED]as an “51 functioning student who benefited from sequencing steps and processing the information, prepare [sic] for assignments and to be able to follow rubrics to be successful.” Tr. at 750. Denominating all of the modifications, accommodations and goals found in 5’s reports and his District IEPs, the witness agreed that these were all integral to [REDACTED] improvement. Tr. at 777-781, 792-793.

Referencing the Fall 2017 Report, Mr. 39 observed that, notwithstanding improvement,[REDACTED]continued to exhibit 51 function deficits vis-à-vis work preparation, comprehension, organization and expansion of expository writing skills. In response, his teachers had developed clear organization and time management goals along with goals addressing 45, decoding/encoding, reading and math. Exh. F at 2. These goals were based upon the student’s test results from the prior school year. Tr. at 765. Although some progress was noted in the Winter 2018 Report, the document nevertheless reiterated [REDACTED] struggles with 44 and social communication. As previously, the witness acknowledged [REDACTED] need for 43 control, self-awareness, and greater insight into the situational context in social conversations. Tr. at 756, 768; Exh. 27 at 1-2.

In fact, Mr. 39 acknowledged that his primary concern for[REDACTED]was time management, organization and social appropriateness, although math and reading fluency remained areas of need. Tr. at 769-771. Nevertheless, the witness testified that 51 function and social goals took precedence over content area weaknesses. When he could, Mr. 39 incorporated the student’s content area goals into his instruction. However, he reiterated that if [REDACTED] was struggling with 43 control and socially dysfunctional [REDACTED], he could not support content area instruction that day in his 38 class. Tr. at 790-791, 794. As 38 teacher, the child’s 51 skills and social/emotional equilibrium were paramount.

While Mr. 39 had limited recall of the 2018 Spring Progress Report, he did note that the student’s on-task [REDACTED] had improved. Again, [REDACTED] social struggles remained a principal concern which was addressed through self-reflection strategies, reframing, stress reduction techniques, problem-solving alternatives and self-advocacy. Exh. H at 1. Mr. 39 had no independent recollection, however, of [REDACTED] achievement of various academic goals during the 2017-2018 school year. Tr. at 760. With regard to his own 23, Mr. 39 acknowledged that [REDACTED] 51 and social deficits had a significant impact upon his success in content area material and, “As a result, 38 goals related to Math, encoding/Decoding and written language skills were not addressed consistently in the spring semester.” Tr. at 774; Exh. H at 1. He testified, moreover, that - other than through the continuous feedback protocol^[18] - he had not observed any content area classes and had no personal knowledge as to whether or how content area goals had been met. Tr. at 782-783. Although teachers were required to send status emails out to parents on a bi-weekly basis, Mr. 39 had not always reviewed them himself. Tr. at 783.

Jeanne 18, Ph. D. is a child psychologist. She is presently on the faculty at 38 Presbyterian, Weill Cornell Medical Center as an instructor and supervisor. Although she had previously evaluated[REDACTED]in elementary school, 15 re-evaluated him in both 2016 and 2018. Exhs. 7, 34. At the outset, the witness objected to Ms. 3[REDACTED] critique of her testing protocol, noting that her failure to record verbatim responses on [REDACTED]’s F-V was an approved strategy to maintain rapport with the test subject. Similarly, she opined that she did not abide by testing time limits as this would interfere with [REDACTED] comfort levels. Addressing “discontinue rules,” 15 testified, “Discontinue rule means that depending on the subtest, the child needs to get three or four wrong before you stop the testing. Again, it can be scored without making it so obvious to the child.... You don’t want them to feel that they are under the microscope. That’s how I respond to this information.” Tr. at 832-833. 15 acknowledged that she could make mistakes and that, in any case, one might expect differences in testing results for different years, presumably a result of 23. Having so testified, she believed her scores were accurate. Tr. at 835.

Comparing her 2016 and 2018 testing, the witness observed that [REDACTED] was now a “different child.” Having experienced some success in school and, as a competitive hockey player,[REDACTED]was eager to return to the District’s high school. His approach to testing demands was very polite and motivated. While his 42 abilities in 2018 remained stable in the average range, 51 functioning continued to be an area of weakness. Specifically, 15 testified that the student’s verbal abilities were now somewhat stronger, while math remained problematic. In furtherance thereof, 15 testified that the multiple 2018 sub-tests which had tested lower than the 2016 sub-test scores were largely insignificant.^[19] Tr. at 847-848; Exhs. JJ, R. She did note, however, that [REDACTED] decrease in numerical operations reflected a significant decrease in ability, a result she believed was partially influenced by the lack of instruction during the summer testing period. Tr. at 849, 886.

On cross-examination, 15 acknowledged that she had departed from standardized testing protocol in several ways, ignoring completion time limits, failing to record verbatim responses and loosely observing discontinue rules so that she might “test the limits” and obtain additional clinical information about the student. Tr. at 863-871. Nevertheless, her colleagues had approved of these administrative changes as a means of obtaining more accurate information about the student.

The witness further indicated that in the course of testing 3, she had begun to transition from hard copy entries to digital input. As a result, the clinician agreed that, with the exception of coding, digit span and symbol search, the data entered in hard copy format did not accurately reflect [REDACTED] scores. Tr. at 876-890, passim. Similarly, information regarding self-corrections would not appear on hard copy testing materials. As a result, 15 agreed that some scores might be confusing.

In sum, comparing the 2016 and 2018 test results, 15 testified, “... Significant improvement from 2016 to 2018 was not much. Maybe one factor here in either direction with math going down and reading decoding going a little up. In the scheme of things, I wouldn’t say there was huge statistical support for improvement. The emphasis being on statistical.” In terms of a statistical lack of improvement, she noted, “That too we have one [sub-test] up and one [sub-test] down. We have decoding and one down in math computation. It’s a split decision.” Tr. at 900. Based upon her knowledge of[REDACTED]and in reviewing the IEP of April 20, 2018, she opined that, while the testing accommodations were appropriate, [REDACTED] would benefit from additional technological support^[20] in addition to the use of a point person and enriched counseling opportunities. Tr. at 905.

[REDACTED], Ph.D. additionally testified on behalf of the Parents. [REDACTED]’s academic background includes a Master’s in special education and a Doctoral degree from [REDACTED]. She is licensed in [REDACTED] to teacher both general and special education but has minimal experience in the field of education. She is a [REDACTED].

In 2016 and 2018 she observed [REDACTED] at [REDACTED] and prepared reports based upon prior evaluations, [REDACTED] records and teacher feed-back. The witness noted that [REDACTED] had been struggling the first time she had visited him at [REDACTED] but had demonstrated marked improvement by 2018. Specifically, the student had demonstrated significant academic progress and had reduced the frequency of [REDACTED] which had interfered with his ability to attend to instructional material. Tr. at 938. The witness described a child who, in 2016, had difficulty reading cues and functioning successfully in a social context. [REDACTED] had additionally exhibited [REDACTED] and self-isolating [REDACTED]s. Exh. K., passim.

By 2018, however, [REDACTED] tic-like [REDACTED]s and noises had largely been extinguished. Tr. at 947-948, 951. Although the student continued to require academic support for his [REDACTED] deficits, he now completed his homework, volunteered in class and remained on topic. Tr. at 973. The witness observed that the student was engaged with the academic materials and able to work more independently. Beyond this, [REDACTED] appeared happy and transitioned appropriately between classes. She noted that [REDACTED] 45 had further refined and he was now highly engaged in community activities and participated in after school social events with his peers. Tr. at 943; Exh. 26.

[REDACTED] opined that [REDACTED] was an appropriate placement for [REDACTED] as he was clearly benefitting from the small pupil: personnel ratio. Beyond this, she believed that the [REDACTED] teacher was a critical component of [REDACTED] success, as the daily check-in periods offered individual supervision, accountability and emotional/academic support tailored to [REDACTED] specific needs at that moment. She has never observed any of the District programs for which [REDACTED] was recommended. Tr. at 968

On cross-examination, [REDACTED] testified that, although she is not a psychologist, she is able to administer certain standardized tests. As a rule, when administering tests, [REDACTED] adheres to the test publisher’s instructions to maximize the utility of the test. In exceptional circumstances reflecting students on the severe end of the autism spectrum, she noted that certain adjustments may be necessary. In those cases, the witness testified that she is careful to notate the modifications. Tr. at 971. Comparing [REDACTED] results from 2016-2017 and 2018, 18 noted several significant decreases in sub-testing, including measures of expressive vocabulary and essay theme development, composition and numerical operations. Tr. at 974-978; Exhs. R, 50. She attributed the fall in scores to the increased demands of the material but noted that the test is merely a reflection of the child’s abilities on that day. Tr. at 999. Having so testified, she was unable to comment upon the appropriateness of the student’s 2017-2018 IEP services as she was unaware of the District’s curricula.

As articulated in [REDACTED]’s 2018 conclusions, the clinician’s primary findings reflected a dramatic decrease in [REDACTED] interfering [REDACTED], a situation which rendered the student more available for learning and less socially isolated. Based upon these observations, [REDACTED] believed [REDACTED] should remain at [REDACTED]. Tr. at 986-987.

Referencing the student’s 2017-2018 IEP, the witness testified that she could not opine on whether [REDACTED] accommodations and modifications were appropriate as she was uncertain as to the integrity with which they would be implemented. Similarly, she believed the 15:1:1 classroom ratio would not offer the advantages that the 3:1 math class at [REDACTED] could offer. Exh. 1. She declined to discuss the proposed reading class as she was not familiar with the District’s curriculum and was uncertain how many children would be assigned to the “small class.” Similarly, she was unable to support the use of the [REDACTED] reading protocol as it was not the [REDACTED] “gold standard” and its value would depend on the child.^[21] Tr. at 1000. In sum, there was virtually nothing in the District’s 2017-2018 or 2018-2019 IEPs that [REDACTED] could actively support. Tr. at 987-991.

[REDACTED] is a [REDACTED] instructor at [REDACTED] and testified in this capacity on behalf of the Parents. Although she acknowledged that she has no certifications in education, social work, counseling or psychology, she was additionally responsible for supervising [REDACTED] group. Tr. at 1055.

As [REDACTED] teacher, [REDACTED] saw [REDACTED] individually for a daily period of approximately 45 minutes. During this time, she addressed the issues that were most challenging for the student at that time. She noted that [REDACTED]’s approach rests upon the development of academic and [REDACTED] which ultimately facilitate independent learning. It is a setting in which mastery of content is subordinate to the development of independent learning skills such as resiliency, problem-solving, self-advocacy, self-reflection, management and organization. Tr. at 1028.

[REDACTED] served as [REDACTED] teacher during the 2015-2016 and 2016-2017 school years. Tr. at 1031. Similar to previous witnesses, she described the student as an individual who struggled with decoding, encoding, written language and [REDACTED] function. During the 2016-2017 school year, [REDACTED] progressed in his ability to read, write and prepare a grammatically correct essay with organized and developed thoughts. Although his [REDACTED] function was strengthened using various learning strategies, his [REDACTED] continued to exert an impact upon both academic and social success. Tr. at 1046-1048. This remained characteristic of [REDACTED] learning profile as documented through the spring of 2017. Exh. J. Nevertheless, the witness noted that [REDACTED] had gradually become more confident in his abilities. As a result, the student demonstrated a more mature ability to reflect upon his strengths and weaknesses and to address them to the best of his ability.

[REDACTED] testified that she had participated in the April 28, 2017 IEP for [REDACTED] She noted that students are grouped academically by learning profile and, as such, the students in [REDACTED] classroom ranged from fourth to seventh grade, a four year span. Exh. 6. She further noted that many of the academic goals articulated in [REDACTED] fall 2016, spring and winter 2017 reports were the same. Tr. at 1067-1070; Exhs. S,T, EE. In sum, the witness agreed that through seventh and eighth grade, [REDACTED] had not achieved many of his literacy, math and social skill goals. Similarly, comparing the student’s [REDACTED]^[22], a student self-report which is compared with his Parents and teachers, the witness agreed that “at least in the social-emotional dimension areas...” [REDACTED] was worse. Tr. at 1076, 1079-1080; Exhs. D, DD. Having so testified, [REDACTED] noted that a discrepancy between self-report and parent/teacher report might simply reflect the student’s growing confidence in himself as a learner. On re-direct examination, the witness acknowledged the fact that while [REDACTED] had progressed with his academic or social/emotional goals, he had a continuing need to solidify and strengthen those skills. As a result, it was not unreasonable to continue certain goals from year to year.

[REDACTED] is the Dean at [REDACTED]. Although he has never taught the student or participated in his CSE convenes, he has observed [REDACTED] frequently in class. Tr. at 1118. He described [REDACTED] as a program designed to meet the students with learning differences, many of whom demonstrated [REDACTED] functioning challenges, language-based deficits or non-verbal [REDACTED]. Small classes are offered, and students are assigned to classes based upon their learning profile. Tr. at 1141. A daily 1:1 38 session additionally targets specific areas of student need. This may include academic, social/emotional or [REDACTED] functioning deficits. On some occasions, addressing social/emotional issues may take precedence over instruction in academic areas. Tr. at 1094. Mr. [REDACTED] expounded upon the [REDACTED] measures which formed the foundation of the [REDACTED] program, noting that the development of [REDACTED]s was the keystone of successful independent learning. Along with this, the witness described [REDACTED]’s use of the continuous feedback system in which faculty members, parents and the student constantly interface with each other to assess the student’s needs on an ongoing and daily basis. Tr. at 1092.

As Dean, [REDACTED] described the duties of the [REDACTED] teacher, adding that the [REDACTED] teacher additionally serves as the student’s point person and is responsible for parent and interdisciplinary communications. Referencing the fall 2018 Progress Report, the witness noted that [REDACTED] continued to evidence symptoms consistent with [REDACTED] and [REDACTED]. Although the student was less [REDACTED] and more on-task, distractibility continued to be a concern for [REDACTED] personnel. In furtherance thereof, additional goals included reinforcing organizational strategies and time management, developing positive peer relationships and strengthening content area skills. Tr. at 1102-1103; Exhs. N, O. Although the witness indicated that goals addressing [REDACTED] function were stressed, this did not exclude the presence of content area goals as articulated in the Winter 2019 progress report. Exh. N.

[REDACTED] testified that he has known [REDACTED] for several years while he was a student at [REDACTED]. He described a child who struggled with [REDACTED] deficits, [REDACTED] and some social dysfunction. Substantively, both reading and math were challenges. With the support of various learning strategies and individualized attention, however, the witness testified that [REDACTED] had demonstrated meaningful progress at [REDACTED]. [REDACTED] had additionally become more self-confident and trusting and, as a result, he was more responsive to direction and instruction. Tr. at 1111-1116. Exh. N, II. He based his assessment upon observations, test scores in content classes and teacher reports.

On cross-examination, [REDACTED] acknowledged that while some scores on standardized testing^[23] had declined from 2016-2017 to 2017-2018, he did not believe this was significant. Exh. 49. In particular, the witness opined that this was true for reading comprehension and essay composition. Tr. at 1123-1128; Exhs. E, I, 48. He added that he had no personal knowledge of [REDACTED] testing circumstances at these times and the impact of his [REDACTED] on the testing process. Moreover, although the student had scored significantly poorer on seven out of eight [REDACTED] dimensions, the witness opined that this was a statistical finding which did not reflect [REDACTED] progress during the 2018-2019 school year. In fact, the witness noted that the [REDACTED] is a subjective instrument, subject to variation. Tr. at 1129-1133; FF at 6, 7. Finally, [REDACTED] testified that the appearance of depressed test scores reflected the student’s awareness that this was his final year at [REDACTED]. [REDACTED] was simply no longer interested in putting his best foot forward. Tr. at 1144-1145, 1151-1152.

The School District’s Position The School District maintains that the IEPs of April 28, 2017 and April 20, 2018 are valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Exhs. 1,2. Specifically, the District asserts that the student was duly furnished with FAPE during the 2017-2018 and 2018-2019 school years. Inherent within this position, the School District asserts that the IDEA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. Thus, compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs and develops strategies and [REDACTED]s directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the [REDACTED] Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]) and in “light of that child’s circumstances.” Endrew F. v. Douglas Cty Sch. Dist. Re-1, 137 S. Ct. 988 (2017).

The District additionally maintains that the [REDACTED] placement is not an appropriate placement for the student as its program is unduly restrictive and does not comport with the notion of furnishing services within the least restrictive environment. Beyond this, the District maintains that [REDACTED] has made minimal progress, much of which is virtually unquantifiable as [REDACTED]’s [REDACTED] measures are subjective opinions offered by both personnel and Parents. Finally, the District maintains that the Parents have not met their equitable burden and their actions militate against their entitlement to relief.

The Parents’ Position The Parents assert that the School District stands in abrogation of its duty to provide [REDACTED] with a free and appropriate public education for the 2017-2018 and 2018-2019 school years in violation of the IDEA See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEPs generated April 28, 2017 and April 20, 2018 reflect a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. Exhs. 1,2. The Parents argue that the District’s educational plan did not adequately incorporate the recommendations of their private evaluations. IHO Exh iii at 4. Moreover, they maintain that the District’s IEPs are substantively defective as they describe generic goals which are both unresponsive to the child’s deficits and unquantifiable. Similarly, the Parents assert that the District’s programming did not offer adequate, targeted one-to-one instruction in a non-distracting setting, amenable to a student with [REDACTED]. Finally, the Parents maintain that the District did not adequately appreciate student’s emotional and academic profile, nor did it offer services within a suitably enriched pupil: personnel paradigm.

Less substantively, the Parents object to the provision of counseling services within a separate room as they believe this would stigmatize their son. Likewise, they object to the placement of lockers near the self-contained classrooms as this would easily identify which children receive special education services. Finally, they have expressed concern that the District’s reading programs would not mesh appropriately with that offered by [REDACTED] in the event that [REDACTED] re-integrated into the District’s program.

Given these circumstances, the Parents assert that the District did not offer a program with meaningful goals and sufficiently individualized instruction. As a corollary, the Parents maintain that the District’s educational plan was improperly predetermined and did not individually address the child’s social/emotional issues, all of which exerted an impact upon [REDACTED] ability to access an education. In sum, counsel maintains that the School District’s IEPs broadly neglected the student’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with their argument, the Parents contend that [REDACTED] constituted an appropriate placement for their son during the afore-mentioned school years and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

Discussion

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

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

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. 38 City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. 38 City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only retros preview, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the April 28, 2017 IEP reasonably calculated to confer an educational benefit upon[REDACTED]during the 2017-2018 and school years?

Sufficiency of evaluations

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

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). It is well settled that a CSE must consider privately obtained evaluations, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ. of the Town of Ridgefield, 10 F.3d 87, 89-90 [2d Cir. 1993]; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; but see A.M. v. 38 City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017] [finding that recommendations included in private evaluation created a consensus as to what the student required where the district did not conduct any evaluations of its own to call into question the opinions and recommendations contained in the private evaluations]).

The IEP for the 2017-2018 school year references extensive evaluations and assessments. It includes, at a minimum, standardized measures on the F- IV, G Test Series Tenth Edition, H, I, J^[24], K, and L in addition to State and District-wide assessments. Exh. 1, passim. Additional input from [REDACTED] was obtained via documentation and verbal report. Assessments reflect the CSE’s consideration of both private and District documentation. Significantly, this additionally includes a private psychological re-evaluation conducted by 15. Exh. 7.

Although the Parents’ complaint claims that the District ignored its obligation to conduct triennial evaluations, this is inaccurate. Exh. i at 3. At the outset, I note that many of the visual-motor assessments as well as the Stanford Achievement Test Series were conducted in 2015. The G, H, I and F were conducted in September 2014 and would not have been due until September 2017, several months after the April 28, 2017 IEP. The evaluations, therefore, comply with the mandates set out in 8 NYCRR 200.4(b)(4) and are not stale.

As suggested by R.E. v. 38 City Dep’t of Educ., 694 F.3rd 167, 175 (2nd Cir. 2012), an assessment of the student’s needs must be fact sensitive and responsive to the details of the case. Thus, in making a determination, the courts advocate a “holistic approach” in which multiple factors are considered (Doe v. Cape Elizabeth Sch. Dist., 832 F.3rd. 69, 77 (1st Cir. 2016), citing 20 U.S.C. § 1401(3)(A)(ii)). Although a CSE is required to consider private evaluation reports, it is not required to follow their recommendations (see, e.g.,Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]). The mere fact that a parent has retained a private expert to recommend alternative programming does not, invalidate the substantive provisions of the District’s IEP (Watson v. Kingston City Sch. Dist. 325 F.Supp.2nd 141 (N. D. July 14, 2014] citing Pascoe v. Washingtonville Cent. Sch. Dist., No. 96-CV-4926, 1998 WL 684583, at *6 (SDNY Sept. 29, 1998).

In sum, all testing was current and accurately reflected the student’s present levels of performance, both strengths and weaknesses, giving a global view of [REDACTED] ability to function within the classroom. All assessments were substantively consistent with [REDACTED]’s summary and recommendations. All evaluations described a child who would benefit from various accommodations and modifications due to his [REDACTED] and math disability. Beyond this, input from [REDACTED] provided insight into [REDACTED] actual ability to function within the classroom and interact with his peers socially. Under these circumstances, I find that the 2017-2018 IEP sufficiently possessed and considered appropriate evaluations and assessments for [REDACTED] The District’s Program

A review of the 2017-2018 IEP indicates that it has honored the majority of [REDACTED]’s recommendations for test accommodations and educational modifications. Nowhere in the psychologist’s report is there a recommendation for a functional [REDACTED] plan or [REDACTED] plan and this was not done. Exh. 7. Indeed, the Parent withdrew her request for an [REDACTED] as she felt that an individualized [REDACTED] would be punitive for [REDACTED] Exh. 20. Both [REDACTED] and District personnel testified to the use of a classroom wide [REDACTED] plan which utilized standard special education strategies and techniques which largely obviated the need for an individual program. In fact, the Parent preferred this paradigm as she felt a class-wide program would not stigmatize her child.

The District’s incorporation of a specialized small reading class was an appropriate response to [REDACTED] deficits in reading as described by [REDACTED]. [REDACTED] instructor, [REDACTED], testified that based upon [REDACTED]’s assessment and others, it was clear that [REDACTED] would benefit from a [REDACTED] phonics-based reading program. In furtherance thereof, [REDACTED] assignment to a specialized [REDACTED] reading class on alternate days was entirely appropriate. Significantly, [REDACTED] reading program was an adjunct to a daily self-contained literacy class offered on a 15:1+1 basis as well as a daily learning lab class. The [REDACTED] class was, therefore, not the only opportunity for [REDACTED] to access a special education reading curriculum.

[REDACTED]’s failure to endorse the [REDACTED] reading protocol is not persuasive. Although she testified that [REDACTED] was the “gold standard” of reading protocols, it is not the District’s obligation to furnish the child with the ideal program. It is well established that the local educational authority is simply not mandated “to provide everything that might be thought desirable by loving parents” (Tucker v. Bay Shore, supra). Similarly, proof that parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act” (Kerkam v. McKinzie, 862 F 2d. 884). In fact, [REDACTED] is derived from the tenets and principles of [REDACTED]. Beyond this, [REDACTED] acknowledged that she had never observed any of the District programs for [REDACTED] and, as a result, declined to offer an opinion. Her reservations about a program she has not observed do not translate into a negative objection to that program. Tr. at 1000.

Having said this, [REDACTED] reading needs would have been addressed through two separate programs. [REDACTED] received both language arts instruction as well as small group reading. The child’s small group reading would have been addressed through [REDACTED] program while language arts utilized the [REDACTED] protocol. [REDACTED] is an intense decoding approach while [REDACTED] addresses higher order comprehension skills. There is no evidence in the record to suggest that these approaches are either duplicative or confusing. The Parents’ suggestion that this is so, is not borne out by any expert testimony. Moreover, should [REDACTED] articulate into the District’s program, I note that [REDACTED] is derived from [REDACTED], the methodology utilized by [REDACTED].

The courts have long held that a CSE is not required to specify methodology on an IEP. Absent evidence that a specific methodology is necessary, the precise teaching methodology to be used may be left to the instructor’s discretion. Rowley, supra, at 204; R.B. vs. 38 City Dep’t of Educ., 589 Fed. App’x 572, 575-576 [2nd Cir. Oct. 2014]; R.E., supra, at 192-94. It has been long accepted that the District has, “broad discretion to adopt programs that, in its educational judgment are more pedagogically effective” M.H. vs. 38 City Dep’t of Educ, 685 F. 3rd 212 [2012]. There is no evidence or testimony which indicates that the [REDACTED] reading protocol is the only one in which [REDACTED] can make meaningful progress and, therefore, I find that the District’s failure to utilize this protocol does not render the IEP defective.

Finally, for the reasons set forth above, the District is not required to implement a continuous feed-back program similar to the proprietary one instituted at [REDACTED]. Moreover, apart from their [REDACTED] testing, I find that their continuous feed-back program merely reflects implementation of best practices used by concerned instructional personnel. Again, there is no requirement that a public school replicate the programming offered by a unilateral placement by integrating, for example, the use of a “continuous feed-back” schema. Lastly, I believe the role played by the [REDACTED] teacher has served the student well. However, this position is largely aligned with the District’s learning lab instructor, an individual who serves as the student’s point person, resource room teacher and [REDACTED] function coach. Tr. at 374.

Class profile and class size

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii]; 200.6[a][3], [h][3]). Both the size and composition of a special class must be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteris50; levels of social development; levels of physical development; and the management needs of the students in the classroom.

[REDACTED] described the students in his District math, science and learning lab classes during the 2017-2018 school year. As [REDACTED] learning lab teacher, [REDACTED] was responsible for ensuring that the student’s IEP was being implemented and that [REDACTED] had the [REDACTED] skills necessary to achieve that aim. Although he did not specifically use the terminology “point person,” as did [REDACTED], this was in fact his role, in part. Tr. at 374.

Based upon his review of [REDACTED] IEP and his participation in the student’s CSE meeting, [REDACTED opined that [REDACTED] educational, social/emotional and learning needs were consistent with his students. Tr. at 194. Specifically, [REDACTED] described [REDACTED] as an individual who struggled with 24, distractibility and skills associated with [REDACTED] function. These issues were, likewise, typical of 22’s students whose strengths, nevertheless, enabled them to participate in a 38 State grade level science and math curriculum. In furtherance thereof, the witness described a cohort of [REDACTED] intact students with [REDACTED] and skill deficits. Indeed, the witness indicated that many of his students fell within normal [REDACTED] levels if not higher, intelligence levels similar to those of [REDACTED] Tr. at 190, 195, 199. In some cases, the children demonstrated needs in the areas of processing speed or working memory. Where students demonstrated skill weaknesses, [REDACTED] testified that this occurred, in part, as a result of attendance, [REDACTED]. Ironically, the movement breaks which were disconcerting to the Parent during her classroom observation were exactly the kind of movement breaks which had been offered to [REDACTED] in his IEPs. Exhs 1 at 13; 2 at 16.

To meet his student’s [REDACTED] needs, [REDACTED] provided daily instruction which underscored strategies for organizing, prioritizing and preparing assignments. Students were additionally given graphic organizers, copies of class notes, scaffolded study guides and modified homework assignments in addition to other 5[REDACTED] aids. Further strategies included the use of long-range planners, study schedules, highlighting specific steps inherent in developing a study plan and logging time. Tr. at 204-205; Exh. 1 at 2. The witness testified that he utilized modified homework assignments and frequent practice tests so that students could familiarize themselves with content area material and acclimate themselves to the test-taking process. Finally, team meetings were held at least once per week and frequently more often when necessary. Exh. A. All of these modifications and accommodations were consistent with [REDACTED] needs.

With regard to the management needs of his class, [REDACTED] testified that most issues were managed within the classroom, and it was rare to resort to more serious disciplinary actions. Tr. at 266-267. Rather, the students might call out or behave inappropriately, as was consistent with their classifications. This kind of [REDACTED] was, indeed, aligned with [REDACTED] [REDACTED] profile and levels of distractibility. Tr. at 89, 281-282, 299, 1102, 1046-1048; Exh. 23 at 10. In fact, the 2018 Fall progress report discussed by [REDACTED] administrator [REDACTED] references, “[REDACTED] attention deficit disorder... which he presents, and it also speaks to his [REDACTED] and challenges with really remaining attentive in the classroom.” Tr. at 1102; Exh. O. Even at [REDACTED] with its intense concentration on [REDACTED], after nearly two years in their placement, the 2019 Winter Progress Report references [REDACTED] as a student with “emerging (emphasis ours) Self-Regulation, Problem Solving, Social/Communication and Management and Organization skills.” Exh. N. at 1. The report notes that these deficits continue to exert an impact upon his performance in the classroom as well as his interpersonal relationships. Moreover, the student’s digital distractions at [REDACTED] had persisted. Ibid. Clearly, the student’s [REDACTED] remains a formidable struggle, but this struggle is consistent with the [REDACTED] profile offered by [REDACTED]. The Parents’ suggestion that [REDACTED] would be placed with [REDACTED] disturbed, manic-depressive, bi-polar and severely emotionally disturbed children is simply not warranted.

In fact, although [REDACTED]’s class was ostensibly a 15:1+1 paradigm, the witness indicated that his daily support class was offered in a 2:1:1 pupil: personnel ratio. There were 2-4 students in his math class and ten in his physical science class (a combination of seventh and eighth graders). [REDACTED] additionally taught a daily learning support class reflecting a 2:1:1 pupil: personnel paradigm. As Tr. at 191-192. In reading, [REDACTED] testified that she taught two small [REDACTED] “classes,” one class with two children and the other a class of one. Tr. at 293. Indeed, in arguably the most important classes of the student’s day, reading and learning support, the classroom ratio was 2:1 or less. Given this testimony, it should be noted that the District’s and [REDACTED]’s ratios are clearly aligned. Finally, while [REDACTED] did not recommend any particular class size, given [REDACTED] [REDACTED] intact status, I find that the District’s small self-contained recommendation provided ample opportunities for both individualized and differentiated instruction. Lastly, I note that [REDACTED]’s learning lab appears analogous to [REDACTED]’s [REDACTED] classroom and, given the intimate classroom settings throughout the day, I believe implementation of [REDACTED] modifications and accommodations could easily be achieved.

Having said this, I must note that the small class size to which District personnel testified reflects fortuitous circumstances and there is no guarantee that these classroom paradigms would be maintained. Should the need occur, however, maximum class size is capped at 15:1:1. This is not unlike the size described by [REDACTED] personnel. Exh. A. In fact, the School’s website for the Connecticut campus notes that while “classes typically have between eight and twelve students with one teacher,” the over-all pupil: personnel ratio is “meaningfully 1:3.”^[25] Indeed, based upon [REDACTED]’s representation, many class sizes at [REDACTED] are not unlike those in District. Exh. A.

Goals

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

A review of the IEP goals drafted during the 2017-2018 school year indicates that only parts of these IEPs contain meaningful and easily quantifiable goals. Unfortunately, study skills goals, one of [REDACTED] most significant needs, were merely restated verbatim from IEP to IEP (compare Exh. 6 at 8 with Exh. 1 at 11). This nearly word for word transposition of goals from the 2016-2017 to the 2017-2018 school years militates against any consideration of the student’s actual needs and levels of performance. For example, both goals identically address the prioritization of homework and the use of a study schedule. Given the student’s specific [REDACTED] deficits in organization, prioritization, attention, time management, sequencing of multi-stage assignments and [REDACTED] stamina, a broad statement of study skill goals offers little guidance into the child’s specific needs and easily applies to any student in the class. As a “road map” to the student’s instruction, the IEP goals offer few specifics to follow. Consequently, there is little accountability in terms of meeting annual expectations. Moreover, it would appear that the IEP does not actually articulate any annual goals but relies upon the continuation of weekly benchmarks. A mere statement referring to 80% success over one week does not indicate meaningful criteria as to what is specifically being measured or taught nor does it provide guidance as to what skills are anticipated at the end of the year.

In reading, the 2016-2017 and 2017-2018 IEPs again articulate broad goals which have been transposed from year to year. While the third reading goal of the 2017-2018 IEP does, in fact, increase the grade level at which [REDACTED] is expected to perform, the remaining goals are nearly identical (compare Exh. 1 at 11-12 with Exh. 6 at 8-9). Similarly, [REDACTED] writing goal is a tired reiteration of his previous 2016-2017 goal. The record indicates that [REDACTED] is a student who struggles with higher order critical thinking skills. His inferencing skills, use of context clues, ability to identify the main idea and filter out extraneous information, conceptualization, idea generation, and sentence expansion are all areas of weakness. Exh. 1 at 8; Exhs. 7, K, R-T. None of this is addressed within the student’s goals. As a result, it is impossible to ascertain what kind of progress [REDACTED] was making as there is no way to ascertain how much adult support or scaffolding is involved.

In math, the goals have been transposed identically from year to year with de minimis increases in criteria (compare Exh. 1 at 12 and Exh. 6 at 9). Clearly, study skills, reading, writing and math goals form the core of [REDACTED] academic programming. Although witnesses testified regarding the use of student portfolios, it is hard to assess progress in the absence of specific criteria. Given [REDACTED] needs, I believe the 2017-2018 goals are poorly drafted, easily applicable to any student in [REDACTED] class and unquantifiable. Moreover, I am not persuaded by [REDACTED]’s description of these verbatim goals as a “reaffirmation” of their appropriateness. Tr. at 85-90.

Finally, although an audiotape of the CSE proceedings indicates that the CSE did, in fact, refer to the student’s goals, I hardly consider this part of the convene a “discussion.” Exhs. A, B. Rather the goals were presented in a “fait accompli” manner with little interchange, if any, between CSE members. Under these circumstances, I find that the goals are repetitious, insufficient, and unquantifiable.

In order to show that a procedural problem is sufficient to constitute a denial of FAPE, a parent must demonstrate that the procedural inadequacy 1) resulted in “the loss of educational opportunity,” or 2) seriously infringed upon the parents’ opportunity to participate in the process of formulating the IEP (Rowley, supra at 206; [20 U.S.C. 1415(f)(3)(E)(ii); (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; see M.M. v 38 City Dep't of Educ., 2016 WL 4004572, at *1 [2d Cir July 26, 2016]; A.C. vs Chappaqua Cent. Sch. Dist., 553 F.3d 165 [2nd Cir. 2009]). In fact, "even minor violations may cumulatively result in a denial of a FAPE"]; see also E.E. v. 38 City Dep't of Educ., 2018 WL 4636984, at *4, *7 [S.D.N.Y. Sept. 26, 2018].

In the matter at bar, the failure to articulate meaningful goals in study skills, math, reading and writing were clear procedural defects. Indeed, the perfunctory manner in which they were addressed, when they were addressed, prevented the Parents from actively and meaningfully developing goals which they could endorse. Nevertheless, while the goals were clearly inadequate, I find that they do not exist as part of a cumulative constellation of defects which wholly impaired [REDACTED] ability to access FAPE. Rather, this failure was a singular defective component of an otherwise intact and appropriate IEP. It is a consideration which in no way nullifies the entire IEP.

It should be noted that, in the course of the CSE proceedings, the Committee largely depended upon the input of [REDACTED] personnel as the student had not attended District schools for several years. Nevertheless, at one point during the course of these CSE proceedings, the Parent’s [REDACTED] sought clarification as to whether the drafted goals were for [REDACTED]’s benefit or for [REDACTED] benefit as a student in District. Exh. A. He posited that instruction offered within [REDCTED]’s intimate setting would, by necessity, reflect different goals than those drafted for use in a larger public-school setting. I find that this is a spurious distinction. For one, many of the articulated goals reflect federal standards for the common core curriculum. Secondly, the pupil: personnel ratio in District is not unlike that at [REDACTED]. Finally, in assessing a goal, it would be difficult to tease out what parts of a goal are specific to [REDACTED] and which are to be implemented within District. Finally, it is clear that [REDACTED] articulated its own goals in their own documents. Tr. at 1101, 1103-1106. They did not rely upon the District’s IEP to establish [REDACTED] yearly goals.

It has long been held that the CSE may rely on teachers of a student in a nonpublic school and their familiarity with a student to develop the student’s IEP (A.D. v. 38 City Dep’t of Educ., No. 12 CIV. 2673 RA, 2013 WL 1155570, at *7 [S.D.N.Y.Mar. 19, 2013]). In doing so, this would include the preparation of goals. In fact, it is a common practice among unilateral placements to utilize their own form of IEP, relegating the IEP document prepared during the CSE convene to the District. Indeed, [REDACTED] testified that [REDACTED]’s goals are provided in the students’ progress reports. Tr. at 1101, 1103-1106. There would be no reason to prepare them twice.

In the instant matter, the duplicative, virtually “cut and paste” goals are the lone defect in the District’s 2017-2018 IEP. Even so, the Parent’s own testimony was ambivalent on this issue, and she stated, “I have no opinion about those goals. I don’t believe that I agreed with them.” Tr. at 590-591. Nevertheless, it is the District’s burden to formulate meaningful and measurable goals, not the Parent’s burden to object during the CSE proceedings. Clearly, the District’s goals are articulated poorly, irrespective of which placement would be implementing them. If a goal is repeated over the course of years with de minimus modifications, it is incumbent upon the CSE to redefine that goal’s parameters - to shape it into something clear, concise and achievable. Nothing is gained by repeating vague goals which do not lead to success. As a result, given the minimal CSE discussion of goals and their repetition from year to year, I find that the District has not entirely met its mandate for 2017-2018.

Point II: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the April 20, 2018 IEP reasonably calculated to confer an educational benefit upon[REDACTED]during the 2018-2019 school years?

Sufficiency of evaluations The 2018-2019 IEP was prepared on April 20, 2018. Exh. 2. At this time, new triennial evaluations were available in addition to [REDACTED] records and a District evaluation. Dr. [REDACTED], the Parents’ independent [REDACTED] evaluator additionally participated. Again, I find that the evaluations and input of various individuals knowledgeable of [REDACTED] abilities provided a global view of [REDACTED] present levels of performance.

Significantly, the District’s psychological assessment reported that [REDACTED] and distractibility, to some extent, compromised the integrity of the testing process, thereby underestimating the student’s [REDACTED] function. Exh. 23 at 10. Ms. [REDACTED] report included standardized testing on the F-V, in which the examiner reported both full-scale scores as well as sub-tests of verbal comprehension, visual spatial, fluid reasoning, working memory, processing speed. Given the student’s [REDACTED] and the wide variability within sub-tests, the ancillary [REDACTED] provided an estimate of the student’s [REDACTED] function which might be less sensitive to the influence of working memory and processing speed. Consequently, the clinician noted that [REDACTED] over-all performance on the [REDACTED] reflected [REDACTED] scores on the upper end of the low average range of low average scores for children of this age. Exh. 23 at 7. Ms. [REDACTED] additionally tested [REDACTED] on the 35-II, a standardized measure, yielding evidence of deficits in attention and [REDACTED] function. Finally, BRIEF [REDACTED] measures of [REDACTED] function were obtained from the perspective of both the Parents and student.

While admittedly scores obtained in Ms. [REDACTED] testing may have been depressed as a result of [REDACTED], they are perhaps a more accurate reflection of [REDACTED] actual ability to function within the classroom environment than those obtained by [REDACTED]. Indeed, [REDACTED] admitted that she had not recorded [REDACTED] answers verbatim, did not abide by testing time limits or adhere to discontinue rules. She acknowledged that she had done so in order to maintain a rapport with [REDACTED], and to obtain scores which filtered out the effects of [REDACTED] (to the extent possible) and truly reflected [REDACTED] abilities. As a result, [REDACTED]’s scores may have minimized the impact of [REDACTED] distractibility and emotional fragility, supporting higher [REDACTED] scores. However, even within a small classroom at [REDACTED], it is nearly impossible to filter out distractions, a fact pointed out by [REDACTED] at the April 20, 2018 CSE meeting. Exh. B. Ironically, scores which reflect an element of distraction may be a more accurate reflection of actual performance within the classroom.

It is well established that standardized testing is, in part, an art and a skill. When interpreting test results, professionals understand the limitations of a snap-shot assessment. They know that test scores are not static measures, unaffected by environmental, biological and emotional/[REDACTED] fluctuations. However, by failing to observe protocol, [REDACTED] essentially created a test environment which was even more alien to the classroom experience than the testing conditions offered by Ms. [REDACTED]. Indeed, even with modifications and accommodations, one cannot completely vitiate the emotional/[REDACTED] component of the testing process. Ironically, although the Parents were concerned about the validity of Ms. [REDACTED] testing, I believe Ms. [REDACTED] protocol is more aligned to the functional setting in which [REDACTED] would operate at school.

Finally, the Parent’s objections to the observation conducted by [REDACTED] are substantively de minimis. Consistent with 34 CFR 300.303[b][2]; see 8 NYCRR 200.4[b][4]), the District was required to conduct a triennial evaluation. A current classroom-based observation of biology was conducted by Mr. [REDACTED]. Exh. 25. Mr. [REDACTED] spent approximately one-half hour observing the student. It should be noted that science is a strength for [REDACTED] and a subject area in which an integrated class had been recommended. Moreover, Mr. [REDACTED]’s observation was not the only opportunity to assess the child within the classroom setting as [REDACTED] personnel additionally shared their knowledge of [REDACTED] during the CSE proceedings. While the Parent did, in fact, object to the length of Mr. [REDCATED]’s observation, it is unclear what she hoped to establish by a longer observation. Exh. 2 at [REDACTED]. Mr. [REDACTED]’s report described a child whose appropriate participation in class was punctuated by occasional [REDACTED].

This was exactly what [REDACTED] personnel had observed and reported. Clearly, [REDACTED] and lack of focus was a long-standing issue. It is no surprise that it was evident during Mr. [REDACTED] observation. Exhs. 25, 0, S, T, U. While [REDACTED] opined that Mr. [REDACTED] visit was overly brief and limited to one class, the regulations and case law are silent regarding the existence of mandated observation parameters. The Parents similarly objected to Mr. [REDACTED] failure to discuss the significant decrease in [REDACTED] and tic-like [REDACTED]s. However, the purpose of an observation is to offer a current view of the student’s status. The observer is not mandated to offer historical comparisons.

Clearly, standards vary depending upon whether the observation is retained privately at individual expense or arranged by the local educational authority. While it is suggested that a longer observation, conducted throughout the day and across various school subjects, would be better, it is not mandated. In this manner, the observer might have additionally witnessed [REDACTED] fluctuations as the student’s engagement with the subject matter waxed and waned. However, the District is not obligated to conduct this kind of observation. In sum, the record indicates that there were ample [REDACTED], educational, medical, psychological, neuro-psychological, social, speech/language and [REDACTED] assessments at the CSE convene of April 20, 2018 CSE. Under these circumstances, I believe the CSE possessed the necessary materials upon which to develop [REDACTED] educational/programming needs.

The District’s Program

As many of the issues regarding the 2017-2018 school year are the same as those addressed in the 2018-2019 school year, I will not repeat them.

Nevertheless, a review of the 2018-2019 IEP indicates that certain programming modifications were made. Specifically, [REDACTED] was assigned to a co-taught science class. As this was one of the student’s strengths, an integrated class was an opportunity for [REDACTED] to experience a greater degree of mainstreaming. This was particularly important as [REDACTED]had indicated he wished to return eventually to the District’s high school. In addition, [REDACTED] reading class was now scheduled daily instead of on alternate days, as had been mandated in the 2017-2018 IEP. As educational demands increased and [REDACTED]continued to struggle with higher order reading skills, the CSE believed the student would benefit from this enriched support. Additional Parent communication was mandated along with the use of books on tape and an [REDACTED]. Tr. at 132-134. The Parent did not object to any of these modifications, some of which he already used at [REDACTED].

During the 2018-2019 school year, 30 taught the ninth-grade self-contained English class to which [REDACTED]would have been assigned.^[26] She noted that there were six students in her [REDCACTED] class and six in her learning support class. While the students in her classes reflected various classifications and disabilities, the witness indicated that the students shared similar learning profiles and academic needs. All of her students were of average or slightly below average intelligence. Tr. at 364-365. None presented with [REDACTED] management issues which could not be addressed within the classroom.

Again, the student’s proposed instructor testified that [REDACTED]was similar to the students in her classes. She described [REDACTED]as an individual who struggled with 51 functioning skills in the areas of time management and organization. In reading, the student required a multisensory approach to fluency. With the [REDACTED] program, the student is supported with visualization and verbalization protocols above and beyond direct instruction and teacher modeling. Individual headsets and tape recorders are incorporated into the methodology so that a “virtual coach” can obtain feedback as to the student’s skill set and offer appropriately leveled materials. In the process, ancillary skills such as spelling, fluency and writing are reinforced.

Beyond this, 30 noted that [REDACTED]was challenged by higher order reasoning skills and needed to work on such skills as inferencing, drawing conclusions, sequencing, character development and recognizing various literary elements. Tr. at 403. All of these skills were part of her literacy [REDACTED] curriculum during the 2018-2019 school year. In furtherance thereof, the witness additionally utilized ICE graphic organizers as a means of supporting expository writing skills, a skill additionally addressed by [REDACTED]. Tr. at 373; Exh. 2 at 13. These [REDACTED]s were incorporated into her methodology as other student in her class shared the same needs.

Additional classroom [REDACTED] included chunking of materials, frequent scaffolding, breaking down of class assignments and the use of PowerPoint presentations to facilitate note taking. [REDACTED] indicated that all her materials are provided in packet form so that loose pages and disorganization are minimized. [REDACTED] testified that student focus is encouraged through digital current events subscriptions which offer leveled reading content on topics of interest. Beyond this, aural presentations were available along with classroom technology to facilitate comprehension. Finally, in math, [REDACTED] noted [REDACTED] lack of automaticity in multi-step operations and endorsed the IEP’s reference to the use of key words to correctly identify mathematical process.

As [REDACTED] learning support teacher, [REDACTED] additionally served as point person and case manager for [REDACTED]. As such, she served as the contact person for [REDACTED] content area teachers and his Parents. [REDACTED] was additionally responsible for ensuring IEP implementation, following up on homework assignments and addressing management needs. This service is appropriate for the student and analogous to that offered by the [REDACTED] teacher at [REDACTED]. While it is understandable that the Parent would prefer a small, intimate environment for their son, it is not the District’s responsibility to replicate the class size, structure and supports that are offered by the unilateral placement. The courts have made it clear that a public school is not required to mimic the services provided by a nonpublic school, merely because the parents were able to obtain the services they preferred (see M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 [S.D.N.Y. Sept. 28, 2018] [while "the district’s proposed program would not have replicated the class size, structure and supports available at [the unilateral placement].... that is not the standard the statute imposed on the CSE").

Finally, the Parents have raised the issue of predetermination and there is a long line of precedent describing its nature and parameters. “Predetermination” is “pre-select[ion of] a particular program for [a student before creating his or her IEP,] regardless of [his or her] demonstrated individual needs” (Nack v. Orange City School Dist., 454 F.3d 604, 610 (6th Cir.2006). Turning first to the issue of predetermination, the consideration of possible recommendations for a student, prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (Nack, supra at 610 ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; M.W. v. 38 City Dep't of Educ., 869 F. Supp.2d 320, 333-34 [E.D.N.Y. 2012], aff'd, 725F.3d 131 [2d Cir. 2013]; D.D-S. vs. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-11 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80, 2012 WL 6684585 [2d Cir. Dec. 26, 2012]; B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K., 569 F. Supp. 2d at 382-83; Danielle G. v. 38 City Dep't of Educ., 2008 WL 3286579, at *6-*7 [E.D.N.Y.2008]. A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP"; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009]). In addition, districts are permitted to develop draft IEPs prior to a CSE meeting "'[s]o long as they do not deprive parents of the opportunity to meaningfully participate in the IEP development process'" (Dirocco v. Board of Educ. of Beacon City School Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013], q2013 WL 25959, at *18, quoting M.M. vs. the NYC Dep’t of Educ. F. Supp. 2nd 583 F. Supp. 2d at 506, [SDNY 2008])). Districts may also "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the [student] as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" have the opportunity to make objections and suggestions'"(Application of the NYC Dept of Educ, SRO 13-068.

At the outset, the 2017-2018 IEP provided additional counseling in order to facilitate [REDACTED] ability to navigate the District’s larger educational environment. Exh. 1 at 13. Moreover, a plan for [REDACTED] to articulate into a mainstream science classroom was broken down into a two-step process in which [REDACTED] assignment to a 15:1+1 science class would be re-evaluated at a later time for possible re-assignment to a mainstream class. In response to [REDACTED] interest in developing meaningful friendships, a new goal was additionally drafted. In fact, [REDACTED] testified that the CSE meeting was “long,” a conclusion borne out by the Parents’ tapes of both CSE proceedings. Tr. at 340; Exhs. A,B. Indeed, the record supports a finding that both CSE meetings were thorough and all-encompassing. Consistent with the IDEA’s clear preference for furnishing services within the least restrictive environment, the District continued to recommend placement within its own high school.

During the 2018-2019 CSE convene, the record is clear that several modifications, accommodations and classroom options were discussed with the Parents and later added to the student’s IEP. These included the addition of daily reading classes, the recommendation for a co-taught science class and mandated Parent communication. Although the assignment of a one-to-one paraprofessional was offered, the Parents objected to both that and the use of an individualized 28. Such a finding does not equate with predetermination. With the exception of [REDACTED] goals, the Parents had a full and fair opportunity to discuss their son’s educational planning and they did so. Given the guidelines articulated above, I find no evidence of predetermination.

Goals

At the outset, I note that the 2018-2019 study skills goals have been augmented by several new goals. Although the first two are repeated verbatim from the 2017-2018 IEP, there are now five other study skills goals which are articulated in a meaningful and accountable manner. This includes objective skills such as organizing a daily binder, writing daily assignments into a homework planner, using a graphic organizer prior to beginning a project and applying three specific strategies to class projects.

In reading, the first goal is a re-statement of the previous year’s goal although the student is now held to a higher-grade level. The second comprehension goal is repeated word for word. Compare Exh. 1 at 12 (goal number 5) and Exh. 2 at 17 (goal number 9). Finally, [REDACTED] goal for identifying textual support when reading grade level materials is largely the same as his 2017-2018 goal with the significant exception that there are now criteria for success. Likewise, the student’s writing goals are identical in both IEPs.

The student’s math key word math goals are essentially the same from year to year with the exception of the mathematical context in which the key words are to be applied (real life versus 9th grade curriculum). A goal addressing inverse operations is restated exactly. It is surely not uncommon for some students to struggle from year to year with the same issues. However, the wide repetition of IEP goals from year to year should signal educators to reassess, redraft and re-define educational objectives and student needs. The answer does not lie in repeating the same goals from year to year. In fact, some of these generic goals have been transposed verbatim since the May 2016 IEP.^[27] This is particularly true for [REDACTED] social/emotional goals, an area of clear weakness for the student. A review of the record indicates that there was no substantive discussion of the student’s goals during the 2018 CSE convene. Exh. B. As a result, the Parents were excluded from a dialogue in which they could express their interest in specific academic and social/emotional objectives for their son during the 2018-2019 school year.

Although Courts have stated that, “modeling an IEP after the prior year’s IEP with appropriate changes is a sensible practice that as long as it is not done reflexively and without consideration of the student’s individual circumstances” this did not occur in the matter at bar (1 and K.R. v. 6 Union Free Sch. Dist., 2019 U.S. Dist. LEXIS 203446 (SDNY 2019). Likewise, courts have held that a clear similarity between IEPs does not translate into the absence of FAPE. Here, there was no “modeling.” Rather, there was a “reflexive” and automatic transposition of goals from one IEP to another, in some instances over the course of years. Ibid. The record indicates that, with the exception of social goals, there was little discussion of [REDACTED] academic goals and they appear to have been largely enumerated absent any substantive discussion. Exhs. A, B. As a result, the Parents were excluded from a dialogue in which they could express their interest in specific academic objectives for their son during the 2017-2018 and 2018-2019 school years.

Point III: Was 5 an appropriate educational placement for [REDACTED]during the 2017-2018 and 2018-2019 school year?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. 38 City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

During the 2017-2018 and 2018-2019 school years, [REDACTED] was a small private school offering academic services in an intimate and nurturing environment. Nevertheless, while class sizes are small, [REDACTED] placement in some classes with students spanning four grades is far from ideal. [REDACTED]’s setting is small, bucolic and similar to a “college campus.” Significantly, the program correlates well with the student’s functional, academic and social needs. In furtherance thereof, the profile includes students with language-based learning challenges, students with non-verbal learning issues and students with [REDACTED] function deficits. Many carry co-morbidities of [REDACTED] and [REDACTED]. Tr. at 1090. [REDACTED] weaknesses are addressed daily through small group instruction and the specialized H reading program. This is entirely appropriate for the student who demonstrates decoding/encoding deficits in addition to difficulty with higher order [REDACTED] demands.

Witnesses testified credibly that [REDACTED] ability to function appropriately in an academic setting is achieved through various accommodations and modifications. These include, at a minimum, small group instruction in which repetition, review, scaffolding and ready access to technology are offered. Check-ins are inherent within the program. [REDACTED] expository writing skills are additionally supported with graphic organizers, modeling and structuring techniques in an effort to develop and reinforce higher order literacy skills.

Beyond this, [REDACTED] deficits in [REDACTED] function are addressed throughout the day and during morning [REDACTED] periods. This is perhaps the most important part of the student’s day. The daily [REDACTED] session targets the student’s greatest area of need on a daily basis. The [REDACTED] class facilitates the student’s ability to plan, organize and prepare for homework or class. Sessions occur in a 1:1 setting and enable the instructor to ascertain the student’s command of the daily material presented. In this manner, academic struggles can be identified and addressed in a timely manner. Witnesses indicated that, when necessary, the 38 period might give priority to social problem-solving and emotional goals, rather than content area material.

A classroom-wide [REDACTED] plan additionally enables [REDACTED]to benefit from management rules and structure without the stigmatization of an individual plan. Significantly, [REDACTED] has been responsive to this strategy and [REDACTED] testified that the student’s [REDACTED] and self-isolating [REDACTED] have largely been extinguished. However, if [REDACTED] does become dysregulated, consistent real-time instructional and emotional [REDACTED] are available from his [REDACTED] teacher.

[REDACTED] is a student who struggled to read social signs just as he struggled to read the written word. His dysfunctional classroom [REDACTED] were a significant component of his management needs. [REDACTED]’s “continuous feedback” protocol ensures consistent academic and [REDACTED] programming among his teachers and with his Parents. The School’s curriculum stresses the development of eight “[REDACTED]” qualities which they believe are necessary to support life-long learning. These include areas such as resiliency, problem solving, self-advocacy, management, organization, social communication, regulation and self-reflection. In this manner, the student may develop awareness of his own responsibilities in the learning process. [REDACTED]is a student who lacks insight into his [REDACTED] and their impact upon social and academic success. The [REDACTED] measures essentially provide the student with a “reality check” as both [REDACTED] personnel and his Parents also complete this form.

The Parent’s witnesses testified uniformly that [REDACTED] had made significant progress during the 2017-2018 and 2018-2019 school years. The Parent testified that [REDACTED]has become more responsible and independent with homework assignments, a significant improvement reflecting her son’s ability to focus, attend, organize and take responsibility for work. Similarly, [REDACTED] personnel indicated that [REDACTED] is more approachable when offered criticism or direction. Both [REDACTED] witnesses testified that [REDACTED] has improved academically and emotionally, progress which is documented throughout the record. Exhs. F, H, N, O, S, T.

While [REDACTED] academic achievements have been uneven, grades, test scores and regular advancement are not the only measures by which the appropriateness of a unilateral placement may be assessed. As such, I note that [REDACTED] performance on standardized academic assessments conducted by [REDACTED], indicates regression and lack of progress in some standardized testing. Compare Exh. 7 at 8 with Exh. 34 at 9; see also Exh. 7 and Exh. 34, passim. Similarly, [REDACTED]’s [REDACTED] measures demonstrated disappointing discrepancies between [REDACTED] self-ratings when compared to Parents and personnel. Even Mr. [REDACTED] acknowledged that [REDACTED] and social deficits had such a significant impact upon [REDACTED] ability to cope with content area material that, “As a result, [REDACTED] goals related to Math, encoding/Decoding and written language skills were not addressed consistently in the spring semester.” Tr. at 774; Exh. H at 1. Similarly, [REDACTED] testified that seven out of eight [REDACTED] scores had declined in the spring of 2017. Tr. at 1075-1076. Although progress has been inconsistent in areas measured by the [REDACTED] testified that [REDACTED] increasing levels of confidence were responsible for the divergence in opinion between Parents, [REDACTED] and the student.

Ultimately, while [REDACTED] academic achievements have been uneven, grades, test scores and regular advancement are not the only measures by which the appropriateness of a unilateral placement may be assessed. Given the “totality” of its programming, I find that [REDACTED] offers an appropriate curriculum (Gagliardo, 489 F.3d at 112).

Point IV: Are the Parents entitled to equitable relief pursuant to Burlington, supra?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. 38 City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. 38 City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. 38 City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

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

The evidence indicates that the Parents participated willingly in their son’s CSE convenes and communicated at length about their concerns. To their credit, they did so in the absence of hostility and negativism. Moreover, they did not rely upon the District to meet all their expectations and independently sought outside consultations, sharing them when appropriate. By letter dated August 10, 2017, but received by the District August 15, 2018, they provided the District with a 10-day written notice, memorializing their dissatisfaction with the District’s program.^[28] Exh. 32.

I am not, however, persuaded that the Parents had a genuine interest in placing [REDACTED] within District. Simply stated, their words were inconsistent with their actions. For example, after receiving the Parents’ 10-day notice, the District offered to reconvene its CSE. Nevertheless, the Parents did not pursue this avenue. Exh. 33. The record indicates that the Parents’ participation in the 2017-2018 and 2018-2019 CSE convenes largely reflected assiduous advocacy for 5 despite [REDACTED]’s reiteration that it was not the District’s duty to replicate 5’s program. During both the 2017-2018 and 2018-2019 CSE convenes, the Parents, through their 37, rejected the District’s placement at the end of the proceedings without even seeing the program. The Parents did so as 1 stated that she had already seen the proposed offer on several occasions in prior years. While this may have been true, several witnesses indicated that [REDACTED] was now a “different child” who had benefitted greatly from educational and social/emotional [REDACTED]. Although he might now be able to reintegrate into a public-school setting, efforts to tailor such a program were resisted. Significantly, while invited to consult with Ms. [REDACTED], the District’s psychologist, again it appears that the Parents did not act on this offer. Exhs. A, 1 at 4.

During both CSE proceedings, the Parents stated unequivocally that the District’s program was not appropriate for their child, noting that [REDACTED] could not cope with the twenty students assigned to special classes such as art or music or even the proposed integrated biology class. When a solution was offered, the Parents were unreceptive to the placement of a teaching assistant or paraprofessional. Ultimately, when [REDACTED], did in fact visit the District’s placement, [REDACTED] testified that the Parent’s actions suggested that they were not really interested in the program. Rather, they were “going through the motions,” based upon their legal obligation. Tr. at 142. He based this conclusion upon the Parents’ comments during the CSE proceedings.

Specifically, the Parents objected to the presence of a teaching assistant which they viewed as a “baby-sitter” and believed his/her presence would be stigmatizing. Exh. 1 at 3. They also opined that [REDACTED] would view the District’s [REDACTED] plan as punitive. The Parents further indicated that the larger class and public-school setting would be too distracting for [REDACTED], precipitating more [REDACTED] and frustration. Ultimately, they believed [REDACTED] would simply not be able to function in a mainstream public school due to the normal distractions that occur in this environment. Although they indicated that they ultimately wished to transition [REDACTED] back to District, they felt he was not “ready.” Exhs. 1 at 3. In sum, I believe their requirements and expectations for a public-school placement were inconsistent with the District’s mandate.

A year later, at the 2018-2019 convene, the Parents’ concerns remained essentially the same. Exh. 2 at 3. Specifically, 1 reiterated her concern that [REDACTED] would be unable to function effectively in a public school and praised the program offered by [REDACTED]. Ibid. However, although the CSE had not met, clearly the Parents had already decided to place [REDACTED] unilaterally when they requested [REDACTED]’s independent assessment. In her April 9, 2018, report, [REDACTED] states, “It is my understanding that Mr. and Mrs. [REDACTED] continue to seek reimbursement for the tuition at [REDACTED].” Exh. 26 at 2. The CSE convened on April 20, 2018.

Having formally rejected the District’s program at the end of the April 20, 2018 proceedings, the Parent then participated in a classroom observation. During the Parent’s observation, [REDACTED] noted that 1 did not ask any questions about programming and expressed no interest in speaking with the guidance counselor. He noted that this was unusual as Parents whose children are transitioning back to District often seek the counselor’s advice as to the transition process. Similarly, both [REDACTED] testified that the Parent did not raise any questions or make observations about their classes. Tr. at 259-261, 424-426. Moreover, given the social-emotional aspect of [REDACTED] challenges, the Parent expressed no interest in a consultation with guidance and counseling personnel, although this would seem a significant concern. Although Mr. [REDACTED] inquired about students transitioning back to District, the conversation appears to have been perfunctory in nature with little curiosity as to how this would be effectuated. Other than an inquiry into the number of students returning to District, there was no follow-up as to how these transitions had been facilitated and over what period. Similarly, there was no interest in networking with similarly situated parents. Despite the CSE’s suggestion that ninth grade was the ideal opportunity as all students would be new to the building, the Parents did not pursue this avenue of discussion. Rather the content of both CSE meetings largely reflects a negative comparison of the District’s program with that of [REDACTED], absent any collaborative effort to make the District’s program’s more acceptable to them. Exhs. A, B.

Although 1 testified that she had not observed the reading program for two years, she did not pursue this issue when it became clear that she would, once again, not be seeing it on the day of her observation. While students may have been involved with Regents, it is likely that meaningful consultation with a reading expert could have been arranged. Finally, when the Parent recognized an autistic student in the proposed classroom, she made no inquiry as to whether this would be [REDACTED] classroom. In fact, she learned in the course of these proceedings that this would not be [REDACTED] class. While it is mind-boggling that the District would not show the Parent [REDACTED] proposed classroom, where there is an obvious concern about classroom profile known to the Parent, the Parent has a duty to seek clarification. In the instant matter, [REDACTED] is a lawyer, licensed to practice in [REDACTED]. There is no question that she possesses the sophistication to ask the appropriate questions.

In fact, at the conclusion of the April 2018 CSE convene, the Parents exercised their right to request an Independent Educational Evaluation (hereinafter “IEE) which was granted. Exhs. 2 at 6; 31, 34. Nevertheless, their 10-day Notice letter (received by the District on August 15, 2018) was sent before the private evaluation was even performed and completed in November 2018. Their notice does not even mention the IEE. It is clear they had already made up their minds to unilaterally place [REDACTED] at [REDACTED] once again. While the District did not reconvene a CSE neither did the Parents request one, although they had been the ones to seek an Independent Educational Evaluation at District expense. Exh. 34.

Ultimately, I believe the Parent’s observation was a half-hearted effort, a reaction to having observed the program previously. While they were clearly cooperative in many other aspects of their relationship with the District, I do not believe they had any serious intent to send [REDACTED] back to District. Exhs. A, B. This is borne out by the nature of their participation during both CSE meetings and [REDACTED]’s classroom observations; their precipitous rejection of both IEPs prior to visiting the District’s program; their failure to follow up on District offers to reconvene or to meet with high school personnel and the circumstances surrounding their request for an IEE. As such, the Parents’ actions clearly warrant reduction of any tuition award.

The Parents’ concern about [REDACTED] being stigmatized as a special education student in a mainstream environment is understandable.^[29] Likewise, it is reasonable for the Parents to want to continue the student in a placement where he is happy and reportedly making progress. Nevertheless, the hearing record reflects the fact that the District largely offered the student an appropriate special education program and placement for the 2017-2018 and 2018-2019 school years. The District, as the local educational authority, simply has a limited mandate to fulfill many of the educational requests sought by the Parents.

Conclusion

I find that the Parents’ request for relief must be granted in part based upon the District’s failure to discuss or draft meaningful goals during the 2017-2018 and 2018-2019 school years. Given the totality of the testimony and evidence, however, I do not find that this was a substantial violation of the District’s mandate, although it clearly marginalized the Parents’ participation in this component of the proceedings. As such, the District fell short of its mandate to provide [REDACTED] with FAPE. That said, any award must be drastically reduced based upon the remaining elements of the District’s programs as well as various equitable factors which militate against the Parents’ right to recovery. As quoted earlier, "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents” (Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567).

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the District shall make a payment of $5,000.00 to the Parents of [REDACTED], such payment representing the District’s total liability for the 2017-2018 and 2018-2019 school years pursuant to the Parents’ Due Process Complaint dated April 26, 2019.

Dated: June 24, 2020

_________________________________________

Lynn Botwinik Almeleh, Esq.

38 State Certified Impartial Hearing Officer

Persons in attendance on October 23, 2019 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services

[REDACTED], Interim Director of Special Services

Persons in attendance on October 29, 2019 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

For the District:

[REDACTED], Esq.

[REDACTED] P

Dr. [REDACTED], Director of Special Services

[REDACTED], Special Education Teacher, District

[REDACTED], Special Education Teacher, District

Persons in attendance on October 30, 2019 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services

[REDACTED], Special Education Teacher, District

[REDACTED], Special Education Teacher, District

[REDACTED], School Psychologist, District

Persons in attendance on October 31, 2019 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services

Persons in attendance on December 19, 2019 For the Parent:

[REDACTED], Esq.

[REDCTED], Parent

REDACTED, [REDACTED] teacher, [REDACTED]

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services

Persons in attendance on February 11, 2020 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

[REDACTED], Ph.D., Neuropsychologist

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services

Persons in attendance on February 12, 2020 For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

[REDACTED], Ph.D., Psychologist and Applied Behavioral Analyst

Persons in attendance on March 4, 2020

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services For the Parent:

[REDACTED], Esq.

[REDACTED], Parent

[REDACTED] Teacher, [REDACTED]

[REDACTED], Dean, [REDACTED]

For the District:

[REDACTED], Esq.

[REDACTED]

Dr. [REDACTED], Director of Special Services

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the 38 State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

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

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

Footnotes

[1] Student checklists, long range planner charts, weekly summaries and self-assessments

[2] As dictated by 38 State

[3] i.e. correct use of punctuation, capitalization, etc.

[4] The witness indicated that the purpose of his homework assignments was to develop the habit of doing work at home. As a result, he did not assign large amounts of homework.

[5] There were no autistic students in [REDACTED]’s proposed class.

[6] A division of Houghton Mifflin Harcourt

[7] Including, inter alia, the District’s educational testing and reports from Drs. 18 and 18. Tr. at 385-387.

[8] The 2019-2020 IEP is not the subject of this litigation.

[9] Newsela is an on-line platform, offering current events materials which can be modified for all reading levels. Additional materials include digital programming offered by CNN and the 38 Times.

[10] i.e., the need to preview or review materials, test preparation, ensuring that all academic modifications and accommodations are being implemented

[11] e.g., sending the student on an errand when [REDACTED] was already behind with a class assignment. Tr. at 417; Exh. 26 at 6.

[12] 2nd Ed.

[13] The 36

[14] The ability to shift between sets of information

[15] While [REDACTED]’s report had referenced average processing speeds in November 2018, scores yielded in Ms. [REDACTED]’s report were “extremely low” per the [REDACTED]. Exhs. 23, 34.

[16] Eg. assistive technology, an 21, a weighted vest, movement breaks and a sensory gym.

[17] Sinks, computers, materials on the walls

[18] The witness described the continuous feedback protocol as one in which there is a weekly inter-disciplinary team review along with Parent input regarding the student’s needs and weaknesses. In this manner, the 38 teacher can more specifically integrate 51 skills instruction with the skills required in content area classes. Tr. at 788-789. The student rates his own progress which is then compared to the ratings of his parents and school personnel. Tr. at 994-995.

[19] Reading comprehension, math problem solving, sentence composition, word reading etc.

[20] Word processing moment-to-moment note taking, speech text-to-voice applications,

[21] The [REDACTED] reading program is derived from the [REDACTED] protocol.

[22] The [REDACTED] inventory (also Qualities of a Sustainable and Independent Learner) refers to the student’s self-report on various aspects of successful learning and is compared with reports from teachers and parents. These include measures of resilience, 45, self-advocacy, social responsibility, [REDACTED], self-reflection, problem-solving and management/organization.

[23] The 40-III

[24] K

[25] prep.edu/our campuses/ct/parent-information/faqs is a self-authenticating website. The basis for determining the 1:3 ratio is unclear.

[26] A class of seven students

[27] See Exh. 6 at 8-13.

[28] Presumably, this was a copy of the ten-day notice sent the year before.

[29] The Parents believed the placement of lockers near the special education classrooms and the use of a separate counseling room would foment stigmatization of special education students.