Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK STATE EDUCATION DEPARTMENT

In The Matter of the Parents and Guardians of [REDACTED]

Petitioners,

:

SUSAN C. LUSHING I.H.O.

- against - NYS #524837

:

[REDACTED]School District,

Respondent.

Introduction

I was appointed as the Impartial Hearing Officer on May 20, 2019 pursuant to the Individuals with Disabilities Educational Act (IDEA), 20 U.S.C. sec. 1415, after the parents filed a demand for due process alleging a denial of FAPE for the 2017-2018 school year. The hearing commenced on September 16, 2019 and continued on September 19 and November 15, 2019 and January 17, 2020. The School District was represented by [REDACTED] Esq. of [REDACTED], LLP and the parents by [REDACTED, Esq. of [REDACTED] LLP. Both parties filed Post-Hearing Memoranda and the actual record close date was March 20, 2020. At the joint request of the parties, the compliance date was extended several times with a final date of March 30, 2020.

Many salient facts are not in dispute. The student attended the District’s [REDACTED] Elementary School from kindergarten through the 5th grade in a general education class or an ICT class with at times speech services and supplemental reading as an Academic Intervention Service (AIS). The parents made an initial referral to the CSE on December 16, 2016. (Ex. 17). There were three IEP meetings in 2017: on February 15 to make recommendations for the remainder of the 2016-2017 school year (Ex. 3), on May 17 to address recommendations for the 2017-2018 school year and after an assistive technology evaluation, on June 19 to add access to a word processor and software to the May IEP (Ex. 4).

District’s Case:

The District called five witnesses and presented 60 documents in evidence as Exhibits 1- 60 in support of its recommendations.

[REDACTED], the Director of Special Education and Support Services, met with both parents on either December 15 or 16, 2016. They discussed the parents’ concerns about transition to the middle school and reading delays and this meeting was immediately followed by an email requesting their son’s referral to the CSE. (T. 33-36; Ex. 17). After the parents gave consent (Ex. 19), evaluations were conducted, and materials gathered before the initial CSE meeting on February 15, 2017. (T. 39-51;

Exs. 9-14). At that meeting he was found eligible for special education as a student with a learning disability. (Ex. 3).

[REDACTED], the secondary supervisor of special education, chaired the annual review on May 17, 2016. Also present were [REDACTED], the psychologist who did the evaluation, classroom observation and social history, [REDACTED], a special education teacher, [REDACTED], the [REDACTED] grade general education classroom teacher, [REDACTED], a guidance counselor, [REDACTED], the AIS teacher, and both parents. (T. 55-57). The recommended program was an integrated co-teaching class (ICT) for math, ELA, science and social studies, generally with 22-25 students and 4-6 students with an IEP. There would be two teachers in each class: the content teacher and the special education teacher who provides consistency and specialized instruction.

She would also teach the daily 12:1 academic skill class to work on IEP goals and a separate reading specialist would provide daily instruction in an 8:1 setting. All service would be coordinated as to strategy and methodology by the special education teacher. (T. 58-65).

[REDACTED], supervisor of elementary special education, chaired the eligibility meeting on February 15, 2017. All the evaluations were sent to the parents prior to the meeting (Ex. 23) and were discussed at the meeting. There was no disagreement about the student’s strengths and weaknesses, the classification of learning disabled or the goals. (T.104- 107). Based upon his difficulty with reading, there were two reading goals to address breaking apart various syllable types and recognizing sight words. The writing goals addressed recognizing spelling patterns and improving organization using graphic organizers and the math goal related to the decoding of word problems. (T.108-112).

The committee did not have the neuropsychological evaluation from 2015 (Ex. 8) with them to review at the meeting but the parent agreed afterwards by email that it could be reviewed later at the annual review meeting. (T. 113-114). The team, including the parent, agreed that it would not be in the student’s best interest to change his placement to an ICT class for the remaining four months of [REDACTED] grade as he was comfortable in his regular education class and with his teacher. (T. 115-116). The change would be discussed again in the context of middle school and instead for the remainder of the school year the team recommended the addition of resource room as well as the continuation of the Wilson program through AIS. (T. 117-118). There were also some instruction and testing accommodations and modifications placed on the IEP. (T. 121-124).

[REDACTED], school psychologist, evaluated the student in 2013 (Ex. 5) and again on January 25, 2017 as part of the referral process. (Ex. 12).

She also conducted a classroom observation and a social history. (T. 158; Ex. 13 and 14). The results of the WISC-V were consistent with the earlier evaluation: very well-developed verbal comprehension skills, extremely well-developed nonverbal and fluid reasoning skills, above average in visual spatial skills and average in working memory and visual processing speed. (T. 159). The Beery test is used to measure visual motor functioning and visual motor integration that can affect writing by having the student copy designs. He copied most designs with adequate speed and detail and his skills were in the average range although he did evidence a somewhat awkward pencil grip. (T. 161).

The sentence completion test in conjunction with a clinical interview was used to assess his social-emotional functioning and his attitudes about friends, family, school subjects and homework. He had friends, enjoyed his family, loved music, had mixed feelings about school with some things being hard and was comfortable in talking about all these things. (T. 163- 164). From the social history she learned about his adoption, early childhood experiences and his receipt of speech and language services through the CPSE. (T. 167-169). The classroom observation provided a snapshot of how the student was functioning in the classroom. He was attentive, followed directions and with teacher encouragement was able to share his thoughts with the class. (T. 169-171).

She reviewed the recent educational evaluation (Ex. 10) and learned that he had difficulty with decoding and spelling but average skills in math and reading comprehension. (T. 172). After the meeting she reviewed the private neuropsychological evaluation from 2015 (Ex. 8) and found it to be consistent with the recent assessments performed by the District’s team of evaluators. (T. 177). As it was felt not to be a good idea to change his class at the time, all agreed that adding resource room and continuing AIS reading services was the best recommendation. (T. 177-178). At the meeting on May 17, 2017 a program for [REDACTED] grade was put in place to help him with his primary weaknesses in decoding, spelling and writing: a special reading class to continue phonics-based instruction, a skills class to provide opportunities for review and extra skills and an ICT class for all his core subjects. (T. 180-181). An assistive technology evaluation was requested and conducted after the meeting. (T. 183).

[REDACTED] provided direct speech therapy to the student during the 1st and 2nd grades in the areas of articulation, production of sounds, syntax and comprehension. She also evaluated him in September 2013 and in January 2017. (T. 240-242; Exs. 7 and 11). Because according to his teacher he was struggling with decoding, she administered the CTOPPS, a comprehensive test that measures phonological awareness, phonological memory and rapid naming. He scored in the below average range in phonological awareness, just below the average range of functioning in phonological memory and in the average range on rapid naming. (T. 243- 250).

She also assessed his narrative oral language skills, the ability to comprehend and produce connected sounds to tell a story, and these were in the average to above-average range despite his difficulty in writing with development and detail. (T. 250-252). His receptive vocabulary was strong as was his expressive vocabulary. The area that needed addressing was phonemic awareness. (T. 252-254). At the IEP meeting on February 15, 2017 he was appropriately recommended for a structured, systematic reading program that was Orton-Gillingham based, such as Wilson, to support decoding skills plus resource room to target writing and multi-syllabic words. (T. 255-256).

[REDACTED], an intervention specialist, began working with the student in the fall of 2015. Told his difficulty was in decoding, she administered the Wilson Assessment of Decoding and Encoding (WADE) (Ex. 38). It showed that he needed to begin at the first step of the Wilson program at 1.3 where he had made two errors. While he had some knowledge of basic beginning and ending sounds, he needed help with digraphs, B, D and P reversals, suffix S, welded sounds and ending blends. (T. 278-283).

During the [REDACTED] grade she worked with the student every day for 40 minutes in a group of five. (T. 284). He responded well, was excited and comfortable in the group and motivated to put in a 100% effort. (T. 185). By the end of the school year he had completed steps 1, 2 and 3 and begun on step 4. He also made gains in fluency and in reading more confidently in a louder voice with more expression. (T. 286-291; Ex 41).

For the [REDACTED] grade he was with the same five students for 40 minutes daily and they began with step 4 and completed step 6. (T. 293-294). She administered the WADE in May 2017 to see what progress he had made during two school years. (Ex. 39). He was able to read 120 words through step 12, including unfamiliar words not yet studied, without any errors by applying his background knowledge and what he had learned. (T. 299- 300).

She attended the IEP meetings in February and May 2017. For middle school, she thought it was important he continue with a systematic decoding program given his progress with her. Then because the reading in content areas was getting harder, having a special education teacher in every core subject in a co-teach class would give him extra support without modifying the content whenever the reading was challenging. (T. 305-308).

Parents’ Case:

The parents called four witnesses and presented 15 documents in evidence as Exhibits A-O in support of their request for tuition reimbursement for the [REDACTED] School.

[REDACTED] testified that her son received speech services before entering elementary school and these continued through the 2nd grade. By the 2nd grade his teachers noticed he was a poor reader and once the parents learned there was a reading class in the basement, they requested the student receive services from the reading teacher. (T. 360-361). For the 3rd grade, he was in a co-teach class and the reading services were removed. Although the principal told them not to worry, they were disturbed that his reading was stagnant and that he was spending time in class staring out the window. After the parents voiced their unhappiness, the principal allowed the reading services to resume towards the end of 3rd grade. (T. 362-363).

The teachers told the parents that the student was below grade level in reading and needed a lot of help but if they kept on, he would get to grade level. At home he was resistant to reading and was upset and acting out, calling himself “dumb” and saying he hated school. (T. 364-365). In the summer before 4th grade, they spoke with the principal about the results of a neuropsychological evaluation indicating dyslexia (Ex. 8) and gave him a copy. The AIS phonics class meeting several times a week in a group was added to his general education program in the 4th grade. (T. 367-370). While he was well behaved at school and outside the house, at home he was irritable. Except for music, he did not feel good about himself and was resistant to completing homework involving reading, writing and math problems. (T. 373-377). According to his report card (Ex. 16), he was still struggling in reading and the parents felt that the AIS phonics program had made no difference in his ability to decode and encode. (T. 379-380).

For the [REDACTED] grade her son continued in a regular education class and the AIS reading class. The parent felt lost and did not know what to do as her son was approaching higher grades and still did not seem to be able to learn to read with what they had been doing. (T. 382-283, 387; Ex. 16). The parents asked for evaluations and there was an IEP meeting in February 2017. He was classified as having a learning disability and as It was mid-year they recommended not changing to a co-teach class but adding resource room. The parent did not agree that was sufficient to address his problems in reading, spelling, writing and math but the only choice seemed to be resource room or no resource room. (T. 397-398). Although the parent told the team that he was a sad boy at home and not willing to do his work, the social/emotional section of the IEP omitted the information. (T. 398-399; Ex 3-6).

She attended the annual review on May 17, 2017. She does not remember the evaluations being discussed and the team discussed goals among themselves. Although the parent insisted her son had made no progress and was unprepared for middle school as he still could not read, spell or write like a boy his age, they recommended he be put in a co-teach class with an 8:1 reading class and a 12:1 skills class. (Ex. 4). No alternatives were discussed and she told the team that she did not think the recommendations would work. (T. 404-410).

During the [REDACTED] grade year the parents began to look at other school options, including [REDACTED]. The school was aware as [REDACTED] contacted the [REDACTED] grade teacher. In the [REDACTED] grade after [REDACTED] thought it would be a good match, the parents signed a contract on March 8, 2017 and paid a $5000 deposit. They were reluctant to take him out of the District’s school because he had friends and the opportunity to be in the orchestra or the band but after they received his IEP in July, they notified the District he would not be attending [REDACTED] grade. (T. 411-416).

He did well in the [REDACTED] grade at [REDACTED] in a 12:1:1 class with a comprehensive program and support throughout the day. He still struggled with some things, but he wanted to read and would pick up a book independently and go to the library. His mood was improved, he made friends and he felt better about himself in classes where the students were smart like him but had difficulty with reading, spelling and writing. He learned cursive writing and had fewer complaints about homework. (T. 417- 420).

Dr. [REDACTED] performed a neuropsychological evaluation over three days in 2015 at the request of the parents. (Ex. 8). The student was reserved but cooperative, put forth effort but needed some redirection when he became fidgety because bored. Dr. [REDACTED] tested intellectual functioning with the WISC IV and part of the WISC III, academics with the WIAT and GORT and used other tests to assess language, visual/special/perceptual skills, motor integration skills, attention and memory as well as did a clinical interview and some psychological tests. He also reviewed a psychological evaluation from 2013 and grades. (T. 498-503).

The student’s full-scale IQ was 112 with a significant 26-point discrepancy between verbal comprehension and working memory skills. His spatial skills and visual and perceptual reasoning were at 119 and his processing speed was average. The testing suggested difficulty in retaining and manipulating information. (T. 507-510). These results were consistent with the evaluation he did in May 2019 (Ex. N) and the District’s psychological evaluation of January 2017 (Ex. 12). (T. 512-517).

On the academic tests, he scored in the average range for reading comprehension, was strong in math skills but had significant discrepancies in decoding, sight words and spelling which were below his verbal IQ and at about 1.8 grade level. (T. 518-519). Although the educational evaluation of January 2017 (Ex. 10) used different valid tests, the results were commensurate in identifying the same areas of weakness. (T. 523-525).

His difficulty in decoding and failure to have mastered foundational reading skills put him at an increasing disadvantage when the reading material for academic subjects gets more difficult in higher grades. (T. 526).

On the language tests, the student was average in following multi-step directions and high average in answering questions about a story, indicating intact receptive language skills. (T. 529). His expressive language skills were variable, from the 99th percentile on different naming tests to the 7th percentile in verbal fluency– a result consistent with a diagnosis of dyslexia. (T. 529-532). Comparing these results with the District’s speech and language evaluation from January 2017 (Ex. 11), although using different testing measure the result of 3rd percentile for phonemic awareness was consistent with the difficulties noted on the neuropsychological evaluation. (T. 533-534).

On various tests for memory, his verbal memory was in the average range although seven points lower than his verbal comprehension index, his visual memory was strong but he showed weakness when recalling arbitrary words that do not fit into a structured semantic category. (T. 545- 547). On attentional tasks, he demonstrated good ability to sustain attention, good flexibility, planning and organization but deficits in his executive functioning in terms of working memory. (T. 548-549).

Psychologically, based upon a clinical interview and the Child Apperception Test (CAT), he did not present with any significant issues. (T. 549-551).

Consistent with the DSM-V the diagnoses were a specific learning disorder with impairment in reading, decoding, sight and nonsense words and a learning disorder NOS dealing with his speed of processing verbal naming, executive functioning and working memory. This is the equivalent of classic dyslexia. (T. 551-553). Dr. [REDACTED]’s recommendations were a phonics-based program with careful attention to vowels and 1:1 instruction by a person who specializes in systematic phonics instruction, such as the Orton-Gillingham approach. (T. 553-555). It is essential the student have multi-sensory 1:1 instruction several times a week. (T. 556). Dr. [REDACTED] did not think an ICT class with two teachers and a combination of students with and without a learning disability would be sufficient to meet the student’s needs. (T. 561-562).

[REDACTED] is a CSE liaison at the [REDACTED] School, a school that uses an Orton-Gillingham based methodology in small classes with a small student-teacher ratio to serve students with a language-based learning disability who have been unsuccessful in a mainstream setting. Its students are of average to above average cognitive potential, have a diagnosed learning disability and have no severe interfering behaviors. (T. 623-624).

In the middle school, no class is larger than 12 students with language arts and math classes of 6:1 or 8:1. Most classes have two teachers. All teachers have college degrees and many are NYS-certified in special education or reading. There are also guidance counselors, psychologists and speech therapists at each of the three campuses. (T. 625-626).

The program focuses on phonemic awareness, reading fluency and comprehension and writing skills taught in a small setting with a sequential multi-sensory format and repetition. The program is Preventing Academic Failure (PAF) that monitors progress everyday. (T. 629). In the middle school there are three language arts classes daily for writing, reading and skills and a math class. All are grouped homogeneously by skills level while science and social studies use the Common Core and contain a mix of students across the grade. Language is simplified; information is broken down and scaffolded; prompts are given when necessary. There are available computers, a library and classes for art, music and gym. (T. 630- 634).

She first met the student, observed him in class and spoke with his teachers in May 2019 to prepare for his IEP meeting. In October 2019 she observed him again and reviewed his entire file. (T. 636). Based upon the file, the admissions material and conversations with his teachers, when he began in September 2017 he had no basic reading or spelling skills and no consistent decoding strategies. He was able to read because he had committed some words to memory. His writing was very limited and he could not write a basic sentence. His self-esteem and confidence were low. (T. 639-640). During 2017-2018 he was in a low-level language arts class with a ratio of 10:2, math 8:1, social studies and science 12:2. He needed small classes because of his delays and his attention and executive functioning issues that required refocusing and teacher prompting. (T. 642- 643).

According to his teachers, he made progress. In reading while he was still struggling, he internalized many of the decoding rules; he started to use his strategies with spelling and made good progress in writing to be able to independently write a paragraph. In math he improved in computation and problem solving and became more organized and more confident as to participating in class. (T. 647-648).

Dr. [REDACTED] testified about the student’s speech services beginning in pre-kindergarten and his 3rd grade year in a co-teach class. He had trouble focusing so the teacher moved his seat to the front and he began saying he was stupid and hated school. (T. 792). In the 2nd grade he had some reading help but this was removed with the co-teach class in 3rd grade. (T. 795-797). Early in the --- grade, she met with his classroom teacher and the reading teacher to inquire why her son was still functionally illiterate as he could not read street signs and would not read out loud or be read to. They explained that they were doing the best they could, working on phonics for decoding and fluency. (T. 798-800). Meanwhile he could not get through his homework without help as he could not break up a word or write a sentence with punctuation. (T. 801- 803). The parents then requested special education and met with Ms. [REDACTED] to ask for reassessments. (T. 806-808).

Her son had outside tutors during his grammar school years but the first time they thought of a private special school was after the neuropsychological evaluation in 2015. She believed in public education and was reluctant to move him but by middle school she felt she would be failing as a parent not to do so given his unhappiness in school and lowered self-esteem. (T. 815-817). Within three months [REDACTED]was a “game changer”. He was a different kid: talking about school, reading to himself and aloud to his parents, ordering books from Amazon. He went from writing one broken sentence to a whole paragraph about his summer vacation, with spelling errors but with more developed thoughts. (T. 818- 820). There was nightly homework with a word list for him to read and the parents were taught how to help him break up and decode the words if he needed help. (T. 822-823). They had told the school psychologist or the principal in the spring or summer of his 4th grade year before the deadline to apply that they were looking a [REDCTED] for the [REDACTED] grade. It wasn’t an eas decision to take him away from his friends and the orchestra but they decided academic instruction with a low student-teacher ratio came first. (T. 823-827).

Findings of Fact and Decision The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §1400(d)(1)(A). State and local education agencies are required under federal laws to identify children with disabilities and develop annual IEPs for each child. 20 U.S.C. §1414. The IEP is a comprehensive document developed by a team consisting of parents, teachers and other school administrators. It outlines the goals of a student and the special education and related services needed to meet those goals. Id. A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable a student to receive educational benefits. Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

The IDEA requires that a FAPE be tailored to the unique needs of the disabled child by means of an IEP prepared at a meeting between a qualified representative of the local educational agency, the child's teacher and the child's parents or guardian. The IEP consists of a written document containing: (1) a statement of the present levels of educational performance of such child; (2) a statement of annual goals; (3) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (4) the projected date for initiation and anticipated duration of such services; and (5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. 20 U.S.C. §1414(d). In developing a particular child’s IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107- 08 (2d

Cir. 2007).

In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either: (1) impeded a student’s right to a FAPE;

• • significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE; or (3) caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); See also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415 (S.D.N.Y.

2007); Application of a Child with a Disability, Appeal No. 07-007. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 (S.D.N.Y. Feb. 9, 2007); Application of a Child with a Disability, Appeal No. 07- 046. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies

• • impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. See, 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp.2d 415, at 419 (S.D.N.Y. 2007).

A Board of Education may be required to reimburse parents for their tuition costs if it fails to offer a FAPE, the school selected by the parents is appropriate and equitable considerations support the parent’s claim. School

Committee of Burlington v Department of Education of Massachusetts, 471 U.S. 359 (1985), Florence County School District Four v Carter by Carter, 51.S.Ct. 7 (1993). Under the IDEA a FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is reasonably calculated to enable the student to receive educational benefits. Bd. of Ed. v Rowley, 458 U.S. 176, 206-07 (1982); Cerra v Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2005). Mr. and Mrs. A. ex rel. D.A. v N.Y.C. D.O.E., 769 F.Supp.2d 403 (SDNY 2011), M.F. v N.Y.C. D.O.E. 11-CV-6526 (SDNY June 4, 2013) and D.C. v N.Y.C. D.O.E. 12 Civ. 1394 (SDNY March 26, 2013) allow for direct payment to a nonpublic school if a family’s financial circumstances so warrant.

The Second Circuit has determined that “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.’ Cerra v. Pawling

Cent. Sch. Dist., supra, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); in that it is likely to provide some ‘meaningful’ benefit, Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997).). To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. Endrew F. v.

Douglas Cty. Sch. Dist, 137 S.Ct. 988, 995–96 (2017). However, a school district is not legally obligated to develop an education plan that maximizes the potential of a student with a disability. Bd. Of Educ. v. Rowley, supra; See, Grim v. Rhinebeck Cent. Sch. Dist., supra; Walczak, supra. The hearing officer must additionally consider whether this educational program places the student in the least restrictive environment. Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995).

There is no claim by the parents here that there were any procedural defects in the CSE meeting of May 17, 2017 as all mandated participants were present and able to fully participate. [For our purposes we need not consider the second CSE meeting in June 2017 that only added accommodations after an AT evaluation]. I find that the evaluations appropriately assessed the student in all suspected areas of disability. The private neuropsychological from 2015 was discussed at the meeting as were the more recent District psychological, educational and speech and language evaluations that Dr. [REDACTED] testified were consistent with his earlier report. The classroom observation although brief was sufficient as a supplement to the psychologist’s evaluation for the purposes she described.

I further find that the IEP accurately described the student’s cognitive and language strengths and his weaknesses in the areas of working memory, decoding, spelling, writing and understanding math word problems. The classification of learning disability under the IDEA is the equivalent of dyslexia as diagnosed by Dr. [REDACTED]. As to the accuracy of the student’s management needs, although the parents presented testimony at the hearing about sadness and low self-esteem noticed at home starting in the 3rd grade, there is nothing in the objective testing or school records to indicate such issues appeared in a classroom setting. Even Dr. [REDACTED] noted after his testing and clinical interview no psychological concerns about the student. Thus I find this claim to be without merit.

The IEP included seven goals in the student’s undisputed areas of academic weakness: decoding and reading comprehension, writing, including spelling and organization, and math word problems. The progress criteria, methods and schedule of measurement were specified with sufficient accuracy to meet the requirements of the IDEA and I find no merit to the parents’ claim that the goals on the IEP were defective.

The parents also raised two challenges to the appropriateness of the substantive recommendations on the IEP. The first is that the designation of an 8:1 reading class did not include any specific language on the IEP to reassure the parents that an Orton-Gillingham approach would be used and that under R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir.2012), this omission cannot be cured by testimony at the hearing. However, it is clear from the discussion at the meeting summarized on page 2 of Exhibit 4 and in the Academic Achievement section on page 5 that the AIS teacher referenced the student’s progress with systematic reading instruction using the Wilson Reading Program. As Dr. [REDACTED] testified there are several comparable multi-sensory Orton-Gillingham based reading programs and in fact uses PAF. Thus, I find that it was implicit at the CSE meeting that this type of reading program was appropriate for the student to make progress and would be provided by the reading specialist in the middle school.

Finally, the parents objected to the sufficiency of the proposed program to allow their son to make meaningful progress in the [REDACTED] grade.

They dispute that he made the gains in reading testified to by the AIS teacher and indicated on the WADE assessments, report cards and progress reviews in grades 4 and 5. (Exs. 16, 38, 39, 41, 42). However, I find the teacher and the evaluations to be persuasive as to slow but meaningful progress at school. While I believe the parents that such progress was not carried over to the home and displayed to them, it need not in this forum be determined why.

Another factor that made the parents distrustful of the District’s recommendation, and which I find somewhat troubling, was the inconsistency of the District’s past choices. From 2rd through 5th grades the placement and services varied and not in a trajectory following the same direction: from general education with some supplemental reading assistance requested by the parents in [REDACTED] grade to co-teaching without reading in [REDACTED] grade to general education with reading in [REDACTED] and half of [REDACTED]hgrade to general education with reading and resource room for the end of [REDACTED] grade. It is beyond the scope of this hearing, however, to review the adequacy of past recommendations as there is no claim for compensatory education.

I find from the credible testimony and documentary evidence presented that the daily phonics-based reading class was instrumental to the advancement of the student’s reading skills during two school years and such a small class was to continue for the [REDACTED] grade. While it was not

1:1 instruction as recommended by Dr. [REDACTED], I note that at [REDACTED] his reading class was also not 1:1. In addition in recognition of the advanced reading level required for all subjects in middle school, an ICT class with a full-time special education teacher was recommended as well as various modifications and accommodations. This combination would allow the student, who has very high cognitive potential, strong verbal and reasoning abilities and a keen interest in many areas of knowledge, to be in a class environment with typical peers for most of the school day as well as provide him with extra support to address his weaknesses.

While I understand the parents’ impatience, reimbursement depends not on whether they selected a better program or an equally good program but on whether the District’s recommendations met the test of appropriateness. On this record I find that the District proved it provided a FAPE for the 2017-2018 school year and that the parents’ request for tuition must be denied. Given this decision it is unnecessary to address the appropriateness of the [REDACTED] School or the equities.

THEREFORE, IT IS ORDERED that the District provided a FAPE for the 2017-2018 school year and the Parents’ claims are dismissed.

Dated: March 30, 2020

/s/ Susan Lushing Impartial Hearing Officer

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 this decision to a State Review Officer of the New York State Education Department under Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

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

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review and proof of service with the Office of State Review of the New York 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.

LIST OF APPEARANCES

For the District

[REDCATED], Esq. 9/16/19, 9/19/19, 11/15/19, 1/17/20

[REDACTED], Director of Spec. Ed. 9/16/19, 9/19/19, 11/15/19, 1/17/20

[REDACTED], Supervisor 9/16/19

[REDACTED], Psychologist 9/16/19

[REDACTED], Speech pathologist 9/16/19

[REDACTED], Intervention teacher 9/16/19 For the Parents

[REDACTED], Esq. 9/16/19, 9/19/19, 11/15/19, 1/17/20

[REDACTED], Parent 9/16/19, 9/19/19, 11/15/19, 1/17/20

Dr. [REDACTED],

[REDCATED] Neuropsychologist 11/15/19

[REDACTED], Liaison 11/15/19, 1/17/20

Dr. [REDACTED], Parent 1/17/20

District Exhibits

Due Process Complaint and Answer

• • Due Process Complaint (8 pages)
• • Answer to Due Process Complaint (3 pages)

IEPs

3. 2-15-17 IEP (11 pages)

4. 5-17-17 and 6-19-17 IEP (13 pages)

Evaluations

• • 2013 Psychological Evaluation (6 pages)
• • 12-5-13 Educational Evaluation (7 pages)
• • 9-30-13 Speech and Language Evaluation (3 pages)
• • 2016 Neuropsychological Evaluation (16 pages)
• • Health Records (6 pages)

10. 1-11-17 Educational Evaluation (12 pages)

11. 1-13-17 & 1-18-17 Speech and Language Evaluation (5 pages)

12. 1-25/17 - 1-27/17 Psychological Evaluation (8 pages)

13. 1-31-17 Social History (3 pages)

14. 2-7-17 Classroom Observation Form (1 page)

15. 6-2-17 Assistive Technology Assessment (4 pages)

16. Report Cards (19 pages)

Correspondence

17. 12-16-16 CSE Referral (1 page)

18. 12-19-16 Prior Written Notice (4 pages)

19. 12-28-16 Consent for Evaluations (received 1-3-17) (1 page)

20. 1-12-17 Referral for Speech Language Evaluation or Services (1 page)

21. 1-18-17 invitation to 2-16-17 CSE meeting (2 pages)

22. 1-24-17 invitation to 2-15-17 CSE meeting (2 pages)

23. 2-8-17 letter from [REDACTED] to parents (1 page)

24. 2-15-17 consent for initial provision of special education services (1 page)

25. 2-27-17 invitation to 5-17-17 CSE meeting (2 pages)

26. 3-2-17 Prior Written Notice (2 pages)

27. 3-9-17 Notice of Board of Education Review for Special Education (1 page)

28. 5-17-17 Prior Written Notice (3 pages)

29. 5-22-17 Consent for Assistive Technology Evaluation (1 page)

30. 6-13-17 letter from [REDACTED] to parents (1 page)

31. 6-13-17 invitation to 6-19-17 CSE Subcommittee Meeting (2 pages)

32. 6-26-17 Progress Report for Goals and Objectives (3 pages)

33. 7-19-17 Prior Written Notice (2 pages)

34. 7-27-17 Notice of Board of Education Review for Special Education (1 page)

35. 8-21-17 letter from parents to [REDACTED] (received 8-28-17) (1 page)

36. 8-21-17 withdrawal from [REDACTED] Central School District (1 page)

37. 8-29-17 letter from [REDACTED] to parents (1 page)

38. 9-24-15 WADE (7 pages)

39. 5-15-17 WADE (9 pages)

40. 3-2017 email exchange between Parent and [REDACTED] (4 pages)

• • Student Performance and Progress Review – Grade 4 (9 pages)
• • Student Performance and Progress Review – Grade 5 (7 pages)
• • Grade K Report Card (4 pages)
• • Grade 1 Report Card (4 pages)
• • Grade 2 Report Card (5 pages)

46. 9-29-13 Acknowledgement of Academic Intervention Services (1 page)

47. 2013-2014 AIS Enrollment Form (1 page)

48. 9-17-14 email exchange between Parent and [REDACTED] (2 pages)

49. 2015-2016 AIS Enrollment Form (1 page)

50. 9-21-16 Acknowledgement of Academic Intervention Services (1 page)

51. 2016-2017 AIS Enrollment Form (1 page)

52. 12-16-16 email from [REDACTED] to District staff (1 page)

53. 12-16-16 email exchange between [REDACTED] and Parent (1 page)

54. 3-16-17 Request for Transportation (1 page)

55. 11-25-19 [REDACTED] subpoena duces tecum (4 pages)

56. 12-9-19 Letter from [REDACTED] School to [REDACTED] (3 pages)

57. Information upon admission (6 pages)

58. 11-25-19 [REDACTED] School subpoena duces tecum (3 pages)

59. Grade 8 Test Result Summary (1 page)

60. 12-5-19 Letter from State Education Department to [REDACTED] (2 pages

Parents’ Exhibits

A Testing Results various dates 1 pg

B 2017-2018 Report Card June 2018 1 pg

C Attendance Record June 2018 4 pgs

D Enrollment Contract March 10, 2017 2 pgs

E Tuition Statement Sept 9, 2017 2 pgs

F Progress Report June, 2018 13 pgs

G Email Jan 11-13, 2015 1 pg

H Email Sept 25-26, 2013 2 pgs

I Email Aug 25-Oct 1, 2015 6 pgs

J Email June 20, 2016 1 pg

K Email Oct, 26, 2016 1 pg

L Initial Ed Screening Oct. 21, 2016 2 pg

M Writing Sample May 17, 2018 7 pgs

N Neuropsychological Eval. May 21, 2019 28 pgs

O School Schedule 2017-2018 1 pg