NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
[REDACTED]
In the Matter of the Application of
[REDACTED]a child with a Disability, by his parents, [REDACTED], for a Due Process Impartial Hearing,
Petitioners,
-and-
[REDACTED] Schools
Respondent.
CORRECTED
FINDINGS OF FACT AND DECISION
Date of Birth: [REDACTED]
NYS CASE Number: 527188
Dates of Hearing: November 19, 2019
January 6, 2020
Record Close Date: February 29, 2020 Hearing Officer: Linda Agoston, Esq.
Linda Agoston
[REDACTED]
Brooklyn, NY 11205
[REDACTED]
Corrected on page 62
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 26, 2019
[REDACTED] | Attorney | Parents |
[REDACTED] | Mother | Parents |
[REDACTED] | Father | Parents |
[REDACTED] | Grandmother | Parents |
[REDACTED] | Executive Director of PPS | District |
[REDACTED] | Special Education Teacher at [REDACTED] | District |
[REDACTED] | Attorney | District |
[REDACTED]. | Attorney | District |
[REDACTED] | Executive Director of PPS | District |
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 7, 2020
[REDACTED] | Attorney | Parents |
[REDACTED] | Grandmother | Parents |
[REDACTED] | Mother | Parents |
[REDACTED] | Director of Clinic [REDACTED] | Parents |
[REDACTED] | ELA Workshop Reading Teacher at [REDACTED] | District |
[REDACTED] | Reading Teacher at [REDACTED] | District |
[REDACTED] | Science Teacher at [REDACTED] | District |
[REDACTED] | English Teacher at [REDACTED] | District |
[REDACTED] | Attorney | District |
[REDACTED] | Attorney | District |
The matter of [REDACTED] (hereinafter the student) came on for hearing before me on November 26, 2019 and concluded on January 7, 2020. The hearing was convened at the request of the parents through an attorney by letter dated July 18, 2019 (Exh. A). The parties moved to extend the compliance dates during the course of the hearing, and I granted the requests for extensions of the compliance dates (Exhs. II- VII; T.524-534).
The hearing was requested by the parents of the student to [REDACTED] the April 18, 2018 (Exh. 21), October 18, 2018 (Exh. 20) and the May 31, 2019 (Exh.3) review and recommendation of the Committee on Special Education ("CSE") to classify the student, residing in the territorial jurisdiction of [REDACTED] ("District"), and to change the Individualized Education Program ("IEPs") for the 2018-2019 and the 2019-2020 school years and to request the following: (1) an order finding that the District failed to provide a free and appropriate public education ("FAPE") during the 2018-2019 and 2019-2020 school years; (2) an order finding that the student required specialized [REDACTED] instruction and that such instruction was appropriate and the equities favor the parents; (3) an order that the District fund 5 one-hour sessions per week of one-on-one ("1:1") [REDACTED] instruction by a reading specialist trained in [REDACTED]for a total bank of 200 hours to be implemented during the school year and (4) and an order to reimburse the parents for the January 21, 2019 Reading Evaluation in the amount of $1,600 (Exh. A at 13; T.523).
The District denies that it failed to provide a FAPE in the 2018-2019 and 2019-2020 school years (T.17-20). The District presented its case on November 26, 2019 and January 7, 2020. The parents presented their case on January 7, 2020. The parents submitted their post-hearing memoranda (closing brief and legal references) on February 22, 2020. The District submitted closing brief on February 22, 2020 by e-mail and I received the brief on February 29, 2020. The record close date was February 29, 2020 and the decision due date was March 13, 2020. The parents withdrew their allegations that the District failed to recommend appropriate management needs, speech services, and [REDACTED] and withdrew their request for 1:1 psychotherapy on the last day of the hearing (T.521).
BACKGROUND
The student is [REDACTED] years old and currently attending [REDACTED] grade student currently attending the [REDACTED] and was born on [REDACTED]. He experienced educational difficulties with reading throughout his educational career (Tr.365). He was placed in a general education class in [REDACTED] grade through [REDACTED] grade in [REDACTED] and received Direct and Indirect Consultant teacher services as well as Resource Room services in 6th grade in [REDACTED] in a general education class (Exhs. 22-24). He received Resource Room services in [REDACTED] grade in [REDACTED] in a general education class (Exh. 3 at 1).
On December 10, 29, and 30, 2015 and on January 7, 2016, a Neuropsychological Evaluation was conducted on the student by [REDACTED] as the student's parents were concerned with the student's reading, handwriting, ability to complete math word problems and attention (Exh. 9 at 1). [REDACTED] noted that the student attended [REDACTED] in [REDACTED] and had attended [REDACTED] since [REDACTED] and that his teachers and his parents reported that his distractibility affected his ability to complete homework (Exh. 9 at 2). [REDACTED] reviewed the student's educational history and noted that the student had received only Academic Intervention Services ("AIS") services and received weekly private tutoring services from the end of [REDACTED]to the end of [REDACTED]. [REDACTED] assessed the student's overall intellectual cognitive abilities and found he scored in the average range based on the Differential Ability Scales-Second Edition ("DAS-II") test in the 45th percentile (Exh. 9 at 11). [REDACTED] review prior evaluations and noted that [REDACTED] conducted a Psychological Evaluation on September 2015 and that [REDACTED] used the Wechsler Intelligence Scale for Children–5th Edition, ("WISC-V”) to assess cognitive abilities and that [REDACTED] found that the student had broad average scores in verbal and nonverbal intellectual abilities and a below average score in a task that measured processing speed (Id.). [REDACTED] noted that a Speech and Language Evaluation was conducted in October 2015, and that the student's scores on the Clinical Evaluation on Language Fundamentals-Fifth Edition ("CELF-5") were in the average to above average ranges and an Educational Evaluation conducted in October 2015 indicated Wechsler Individual Achievement Test-3rd Edition ("WIAT-III”) scores in the average range with a "relative weakness in written expression and mathematical fluency" (Id.). [REDACTED] noted that the student's fall term report card for the 2015-2016 school year indicated "weaknesses in the areas of works independently, reads with comprehension, reads with fluency, expresses ideas clearly and logically (in writing)... earned an 'approaching expectations with support,' in all of the above areas, the third lowest of four possible grades" (Exh. 9 at 3). [REDACTED] assessed the student's executive functioning ("EF") on the NEPSY-2 and found that the student demonstrated a deficit in inhibition, a part of attention that stopped distracting thoughts and noted that the student was "reported to display his difficulty inhibiting or blocking out competing, off-task thoughts" (Exh. 9 at 5). [REDACTED] explained that the student had a tendency to rush and to make careless mistakes, another aspect of inhibition as he scored in the >2nd percentile in the ability to copy geometric shapes because he rushed and copied shapes inaccurately (Id.). [REDACTED] noted that the student had the potential to pause and reflect and not respond impulsively when not required to think quickly based on the Kaufman Test of Educational Achievement, 3rd Edition ("KTEA-3") Reading subtest score (Id.). [REDACTED] reported that the student also demonstrated poor planning as a result of attention deficits, noted that in other areas of EF that the student demonstrated cognitive flexibility or the ability to mentally shift gears and was able to engage in metacognition or to think about thinking to solve a problem (Exh. 9 at 7).
[REDACTED] used the KTEA-3 to assess the student's verbal cognitive functioning and language abilities (Id.). He reported middle average scores on the DAS-II Verbal Ability Cluster score and a middle average score in the KTEA-3 in listening comprehension score in the 42nd percentile, a score in the 4th percentile on the KTEA-3 in the oral expression subtest as the student "demonstrated marked difficulty with grammar" and concluded that the student had difficulty in formulating sentences and noted that this weakness was consistence with the relative weakness in written expressive found in the Educational Evaluation in 2015 (Id.) [REDACTED] found intact scores in nonverbal reasoning based on the DAS-II as the student's score fell in the middle average range and his visual - spatial skills was in the middle of the average range based on the DAS-II Spatial Cluster score; however, he found that the student had a relatively low score on the Recall of Designs subtest (Exh. 9 at 9).
[REDACTED] found that the student had difficulty encoding verbal information (filing information into long-term memory) and difficulty retrieving verbal information and obtained score in the 8th percentile, a below average score (Id.). [REDACTED] found that the student had difficulty with memorizing information as he scored in the 16th percentile and concluded that the ineffective use of memory strategy limited the amount and rate of verbal information that the student could encode, and his retrieval deficit added to his difficulty finding information in his long-term memory (Id.). He noted that the student's visual memory was assessed for both recall of visual content and for the spatial properties of visual information and that his visual content score fell below average in the 9th percentile and that the student had much more difficulty compared to his peer in learning visual details and visual content that created changes in his ability to learn phonics or learning high frequency letter combinations such as morpheme (Exh. 9 at 10).
[REDACTED] used the Behavior Assessment System for Children, Third Edition ("BASC-3") to assess the student's personality traits and found that the student experienced elevated anxiety as he did not feel able to meet the demands of school consistent with his comments about himself [REDACTED]; however [REDACTED] noted that the student derived self-esteem from other non-academic sources "such as being a well-liked child" and being relatively good at sports" (Exh. 9 at 12).
[REDACTED] assessed the student's reading ability by the KTEA-3 and reported the following scores: overall decoding at the 30th percentile, in the average range; an average score in phonetic decoding in the 37th percentile; a below average score in reading fluency in the 14th percentile; a below average score in spelling in the 12th percentile and an average reading comprehension score of 42nd percentile on untimed tests (Exh. 9 at 13). [REDACTED] stressed that the student had average reading comprehension, but his scores provided evidence for Dyslexia or a Language Based Learning Disability that involved trouble acquiring and using the symbols of language (Id.).
[REDACTED] found the student's written expression was in the below average range in the 3rd percentile and stressed that he had a marked difficulty with grammar to identify the correct verb tense and correct pronoun and had trouble integrating information to wrote complex sentences (Exh. 9 at 14). He assessed the student's mathematics ability and noted that the student had "trouble solving word problems that required relatively more inference and/or manipulation of information" (Exh. 9 at 15). [REDACTED] diagnosed the student with the following: 315.39: a Specific Learning Disorder; 315.2: a Specific Learning Disorder (Dysgraphia), with impairment in written expression, with impairment in spelling, accuracy, grammar, and clarity and organization of written expression. 314.00; ADHD predominantly inattentive presentation and 315.00: A Specific Learning Disorder (Dyslexia), with impairment in reading, with reading fluency (Id.). [REDACTED] recommended that the student be classified for special education services and receive 1:1 or small group, not larger than 3 students of evidence based, multi-sensory, [REDACTED] reading instruction 3 times per week for a full dedicated period as well as speech and language therapy ("SLT") 2 times per week, instruction in reading comprehension, extra support in tasks that require planning and prompting to regulate his pace (Exh. 9 at 16-17). [REDACTED] recommended modifications and accommodations as follows: a) preferential seating, b) refocusing and redirection, c) directions repeated, d) check for understanding, e) copy of class notes, f) extended time for all examinations, g) separate quiet place for all examinations, h) refocusing and redirections during examinations, i) no scantrons / record answers in test booklets, j) spelling and punctuation requirements waived (except for spelling or punctuation tests) (Exh. 9 at 19).
For the 2016-2017 year on April 5, 2016, the District’s CSE classified the student with an Other Health Impairment ("OHI") and recommended that for the [REDACTED] grade a placement in a 10-month program in a general education class at [REDACTED] with Direct Consultant Teacher services 3 times per week for 40 minutes per session in the classroom (Exh. 24 at 1).
The IEP comments section indicated that on October 27, 2015 the team did not consider that the student qualified for special education and that the parents requested an Independent Education Evaluation ("IEE"). The comments further indicated that the April 5, 2016 meeting was an initial evaluation and that the team reviewed [REDACTED] IEE Neuropsychological as well as the CELF scores from 2015 and noted the Speech and Language testing indicated scores in the superior range and that the student was screened for AIS reading and math and that he qualified for reading support and that there were concerns about anxiety or attention and that he "appears to lack confidence" (Exh. 24 at 2).
The IEP academic section indicated that the student qualified for GRADE based on the score at the 37th percentile and that he seemed concerned on any decoding timed test and struggled with math fluency and demonstrated weaknesses in grammar and sentence structure and needed to improve written expressive and reading comprehension skills.
The IEP management needs indicated that the student needed special education services to be successful in the regular education classroom and did not need a positive behavioral intervention or a behavior intervention plan ("BIP") or an assistive technology ("AT") device or services (Exh. 24 at 6). The IEP contained the following 5 goals: a study skill goals for the student to a variety of strategies such as graphic organizers, flashcards, etc. to sort information; 2 reading goals to ask and answer questions to demonstrate understanding of texts and to determine the main idea in middle 3rd grade content material; 2 writing goals to spell correctly a given word upon request and to use the writing process of planning on a written assignment (Exh. 24 at 7).
The IEP indicated that the parents of the student expressed no social or emotional concerns to be addressed through special education and that the student was diagnosed with ADHD (Exh. 24 at 6,7). The IEP recommend modifications of refocusing and redirection and directions explained as well as testing modifications of extended time on tests of 1.5 (Exh. 24 at 8).
For the 2016-2017 year on June 21, 2016, the District's CSE classified the student with OHI and recommended that for 4th grade he be placed in a 10-month program in GES in a general education class with Direct Consultant Teacher services 3 times per week for 40 minutes per session in the classroom and the comments section indicated that the meeting was an annual review and that the student had a difficult time starting assignments and organizing himself independently and that his mother indicated that homework was extremely difficult and that the student could not start many writing assignments and needed constant support to complete open-ended assignments (Exh. 23 at 1). The IEP repeated the academic, social development and management needs and indicated that the student did not need a BIP or an AT device or services (Exh. 23 at 5).
The IEP contained the following 9 goals: a study skill goals for The student to self-check all school work for accuracy; 2 reading goals to answer "wh" questions and to answer questions to demonstrate understanding of texts and to determine the main idea on the beginning of the 4th grade content material; 4 writing goals to write an opinion piece of up to 2 paragraphs with a topic sentence, 3 relevant details and a closing statement, to spell correctly a given word upon request and to use the writing process of planning on a written assignment and to use the writing process to revise and edit and a mathematics goals to answer 25 problems correctly in 1 minute of mixed problems of addition, subtraction and multiplication (Exh. 23 at 6). The IEP recommend extended time on tests of 1.5 (Exh. 23 at 8).
For the 2017-2018 year on April 26, 2017, the District's CSE classified the student with OHI and recommended that for 5th grade he be placed in a 10-month program in GES in a general education class with direct consultant teacher services 3 times per week for 40 minutes per session in the classroom and the comments section indicated that the meeting was an annual review and that undated testing revealed average skills in most areas with weakness in math facts fluency and errors in spelling and punctuation on the writing sample subtest and that the student did not seek out the special education teacher during direct consult teacher services and that he participated in AIS reading and had a history of "being frustrated and shutting down" and that the classroom teacher reported the student "will avoid tasks" and that "many of his errors are the result of him being careless" and that the parent reported "great difficulty with homework and retaining information" (Exh. 22 at 1). The academic section indicated that the student was reading on an instructional Level R (beginning 4th grade) and that he participated in AIS in reading this year (Exh. 22 at 5). The academic, development and functional needs section indicated that the student needed to "improve his written expression and reading comprehension skills (Id.). The management needs indicated that the student required special education services to be successful in the regular education classroom and that the student did not need a BIP or an TA device or services (Exh. 22 at 7).
The IEP contained 4 goals: a reading goal to answer questions to demonstrate understanding of texts based and inferential questions while citing text details and examples as a basis for the answer on the 5th grade level for all content subjects; 3 writing goals to write up to 4 paragraphs using 4 definitions and quotations to develop points and a logical closing statement; to use the writing process of planning on a written assignment and to use the writing process to revise and edit (Exh. 22 at 8). The IEP indicated modifications and accommodations of refocusing and redirection and directions explained daily in the classroom and testing accommodations of 1.5 on all tests and testing away from all distractions (Exh. 22 at 9).
For the 2018-2019 year on April 18, 2018, the District's CSE classified the student with OHI and recommended that for 6th grade he be placed in a 10-month program in [REDACTED] in a general education class with a Resource Room program weekly with a staffing ratio of 5:1 on alternate days for 42 minutes and Direct and Indirect Consultant Teacher services on alternate days for 42 minutes per session in the classroom (Exh. 21 at 1). The comments section indicated that the meeting was an annual review and that the special education teacher observed growth and that the student was able to self-advocate and ask for help and that he progressed in reading and math (Id.). The IEP indicated that the student was not foreign language exempt, and that the student was a strong math student and was an athlete but needed to improve written expression skills and needed graphic organizers and moderate level of support (Exh. 21 at 5). The IEP indicated that the student was diagnosed with AHDH and needed special education services to be successful in the general education classroom and had a "significant delay in reading comprehension, written expression, attentional skills which inhibits progress in the general education environment" and that the student did not require positive behavior support or a BIP or an AT device or services (Exh. 21 at 5-6).
The IEP contained 6 goals: a study skills goal to complete homework assignments 2 reading goals to answer questions when presented with narrative / informational text on the 6th grade level for all content subjects to identify and state the author's point of view by citing 3 examples from the text; to apply analytic thinking skills to answer 4 questions correctly; a writing goal to utilize correct punctuation and to write up to 5 paragraphs with a logical introduction and closing statement using expository text patterns and to write a narrative using 3 concrete and sensory details to precisely describe actions, thoughts and feelings (Exh. 21 at 7). The IEP indicated modifications / accommodations of refocusing and redirection and directions explained and use of a graphic organizer (Id.). The IEP indicated modifications and accommodations of refocusing and redirection and directions explained daily in the classroom and testing accommodations of 1.5 on all tests, on-task focusing prompts and directions read to the student by a human reader (Exh. 21 at 8).
On February 7, 2018, [REDACTED] conducted an Educational Evaluation on the student when he was in 5th grade at GES and he reported that the student's a scatter of achievement among the WIAT-III subtests: reading comprehension score of 111 in the 77th %tile; word reading score of 93, in the 32nd %tile; spelling comprehension score of 108, in the 70th %tile; spelling score of 94, in the 34th %tile; math problem solving score of 70, in the 108th %tile; math fluency in addition score of 23 in the 23rd %tile; math fluency in subtraction score of 90, in the 25th %tile; essay composition score of 121, in the 92nd %tile; sentence building score of 97, in the 42nd %tile (Exh. 7 at 5). Mr. [REDACTED] noted that the student's areas of weakness were in schwa vowels and sentence structure as he often omitted punctuation and lacked endurance (Exh. 7 at 6).
On September 25 and 28, 2018, a Psychological Evaluation was conducted by [REDACTED], Psy.D., on the student when he was in 6th grade, who noted that the student was classified as OHI and was diagnosed with ADHD, Dyslexia and Dysgraphia by Dr. [REDACTED] and noted that the student received consultant teacher support services through the end of 5th grade and began receiving every-other-day Resource Room (alternating with Consultant Teacher services) this school year (Exh. 8 at 1). Dr. [REDACTED] noted that his cognitive functioning was assessed by the WISC-V and found that the student received a verbal comprehension index score of 86, in the 18th %tile, in the low average range, a fluid reasoning index score of 193, in the 58th %ile, in the average range, a full-scale score of 94, in the 34th %tile, in the average range. Dr. [REDACTED] found variable scores in the subtests: a verbal comprehension index score of 8, in the 25th %tile, a visual-spatial index core of 9, in the 34th %tile and a processing speed score of 6 in the 9th %tile (Exh. 8 at 3). Dr. [REDACTED] concluded that the student's "ability to process simple auditory information far outweighs his speed of visual-motor processing" (Exh. 8 at 4).
Dr. [REDACTED] used the BASC-3 to assess the student's personality traits and found that the student had no social / emotional or behavior difficulties or concerns and that his Spanish, Science and Social Studies teachers rated his behavior on the Conners 3 scale and indicated no concerns for attention, behavior, social relationships or EF, but he was failing all quizzes in Spanish, (Exh. 8 at 6). Dr. [REDACTED] concluded that the student had overall functioning in the average range and his areas of strength were inductive reasoning and auditory working memory and visual memory was in the Low Average range (Id.).
On October 11, 2018, [REDACTED] conducted an Educational Evaluation and used the Woodcock-Johnson-4th Edition ("WJ-IV") Test of Achievement on the student when he was 12 (Exh. 7 at 1). She found the following subtest scores: broad reading was 80, in the 9th %tile, in the limited range; basic reading was 100, in the 49th %tile; math was 24th %tile, in the limited to average range; his academic skills were in the limited range in the 20th %tile (Exh. 7 at 2-4). Ms. [REDACTED] noted that the student was not penalized for errors in basis writing skills such as spelling and punctuation (Exh. 7 at 2).
For the 2018-2019 year on October 18, 2018, the District's CSE classified the student with OHI and recommended that for 6th grade he be placed in a 10-month program in [REDACTED] in a general education class with a Resource Room program with a staffing ratio of 5:1 for 42 minutes daily (Exh. 20 at 1). The comments section indicated that the meeting was a reevaluation meeting as the parents requested a review of the student's reading needs and difficulty with foreign language (Id.) The IEP indicated that the student adjusted well to middle school and was an active participant in class and was able to self-advocate and seek out teachers for help and was diagnosed with AHDH and involved in sports outside of school (Exh. 20 at 7). The IEP added management needs in addition to special education services of note taking assistance in the form of a copy of class notes, a graphic organizer to plan written assignments and checking for understanding in order for the student to be successful in the general education class as the student had "a significant delay in reading comprehension, written expression" which inhibited progress (Id.). The IEP indicated that the student did not require positive behavior support or a BIP or an AT device or services (Exh. 20 at 8).
The IEP contained 11 goals: 2 study skills goals to utilize class notes to create a study guide for upcoming tests and to complete homework assignments for all his classes; 4 reading goals to answer plot related questions, to answer questions when presented with narrative / informational text on the 6th grade level for all content subjects, to provide 2 examples of explicit text based evidence to support inferences and analysis of the text, to identify, to state the author's point of view by citing 3 examples from the text and to apply analytic thinking skills to answer 4 questions correctly; 4 writing goals to utilize correct punctuation, to correctly spell 10 words selected by the teacher; to write up to 5 paragraphs with a logical introduction and closing statement using expository text patterns and to write a narrative using 3 concrete and sensory details to precisely describe actions, thoughts and feelings about a real or imagined event, including 5 transitional word and a mathematics goal to solve multi-operations problems with both positive and negative integers using the strategy of PEMDAS (Exh. 20 at 9).
The IEP indicated modifications / accommodations of refocusing and redirection and directions explained, the use of a graphic organizer, a copy of class notes, checks for understanding and special seating closer to the teacher (Exh. 20 at 10). The IEP indicated modifications and accommodations of refocusing and redirection and directions explained daily in the classroom and testing accommodations of 1.5 on all tests, on-task focusing prompts and directions read to the student by a human reader (Exh. 20 at 11).
On October 19, 2018, Ms. [REDACTED] conducted a Summary of Diagnostic Reading Analysis on the student and use the Burns/Roe Informal Reading Inventory, Word Lists for grades 4-8 and Oral Reading for grades 4-7 (Exh. 10 at 1). Ms. [REDACTED] indicated that the student was an average oral reader and had difficulty with multisyllabic words in isolation and in context (Exh. 10 at 2).
On December 1, and 28, 2018, the [REDACTED] Education and Research conducted a reading evaluation on the student at the request of the parent when he was a [REDACTED] years old by [REDACTED], Ms. Ed. (Exh. 11 at 1). The examiner noted that the parent expressed concerns with the student's reading, writing, spelling and vocabulary and as indicated on the IEP that he was diagnosed with ADHD and received "Resource room Program 5x/wk 42 minutes. In addition [the student] attends AIS/ELA workshop reading support every other day for 40 minutes" (Id.). The results of the evaluation indicated the student scored in the average range in Phonological Awareness and in the superior range in Phonological Awareness and in the below average range for Rapid Naming test as assessed by the Comprehensive Test of Phonological Processing ("CTOPP-2") and his reading rate, accuracy and comprehension were below grade average as assessed by the Gray Oral Reading Test ("GORT-5") and his silent reading quotient as assessed by the Gray Silent Reading Test ("GSRT") was very poor (Exh. 11 at 3). The examiner used the Test of Word Reading Efficiency ("TOWRE-2") and found that the student scored in the poor range in Sight Word Efficiency and in the below average range in the Phonemic Decoding Efficiency tests (Exh. 11 at 4). The examiner noted that the student's phonics skill deteriorated when efficiency was required, and spelling was a weakness (Exh. 11 at 6). The examiner indicated that the student's fluency for both oral and silent reading were assessed by multiple sources on the GORT-5, TOWRE-2, GSRT and COTPP-2 and the scores were in the poor to below average range and that his reading comprehension, accuracy, fluency scores were in the below average range and that the student "skipped whole lines of text, did not acknowledge punctuation and, as incidents increased, he became more disconnected with the text" (Exh. 11 at 7). The student's oral and silent comprehension skills as assessed on the GORT-5 test was in the very poor range and his writing as assessed by The Test of Written Language-4 was administered and the student's "sentences were not consistently well constructed and at time were fragmented or poorly punctuated" (Exh. 11 at 8). The examiner found that the student's writing skills while spelling was not considered was very weak and that his "handwriting appeared more scribbled and unclear when he wasn't confident in the spelling of a word"(Id.). The examiner concluded that while the student's Dyslexia and AHDH were not uncommon, he required a specific approach as the conventional intervention plan had not succeed to an adequate level (Exh. 11 at 10). The recommendations included instruction in multisensory strategies, O-G program to improve his deficient word recognition skills and that the program include data collection to assure progress and reduce frustration and instruction in daily practice with fluency and supplemental strategies such as "Stop and jot" to improve comprehension and vocabulary (Exh. 11 at 12).
On March 19, 2019, the Classroom Observation indicated that the student was observed in [REDACTED] by his special education teacher, Ms. [REDACTED], during a math class and that the student was a willing participate; he initiated conversation with the student next to him; he focused on tasks and followed directions and that the student was able to follow the lesson, was well behaved, but was districted and yet the student was able to complete his work with minimal guidance (Exh. 12 at 1-2).
By e-mail dated March 21, 2019, [REDACTED] wrote to the parent to state that the student frequently asked Ms. [REDACTED] and Ms. [REDACTED] for help and that the student had a difficult time using the voice to text device and noted that the request for a 12-month program and that her request for an AT evaluation would be considered at the next Annual Review Meeting and noted that Reading services were available to student with a Reading Specialist through ELA Workshop at [REDACTED] and was considered a AIS program. Dr. [REDACTED] noted that the district would reimburse $450 towards the full cost of the reading evaluation of $2,000 (Exh. 13 at 1). Dr. [REDACTED] indicated that she informed the parent with the name of an independent evaluator for the IEE, Dr. [REDACTED] and that parent opted for [REDACTED] and noted that the [REDACTED] evaluation did not provide any new or different information from Dr. [REDACTED]'s evaluation in 2015 or Ms. [REDACTED] October 2018 evaluation or Ms. [REDACTED]'s evaluation and that she was "not permitted to use district funds in excess of the cost parameters without demonstrating a substantial need for that evaluation"(Exh. 13 at 2).
By document dated March 25, 2019, the Reading teacher, Ms. [REDACTED], noted that the student loved to read anything related to sports; he was able to answer explicit comprehension questions about a text and was inconsistently able to answer implicit questions when focusing on the main idea of a text and making inferences; his fluency was slightly below average; he was able to decode; he struggled with spelling; he would benefit from a graphic organizer and would use a spelling dictionary when writing (Exh. 14).
For the 2019-2020 year on March 26, 2019, the District's CSE classified the student with OHI and recommended that for 7th grade he be placed in a 10-month program in [REDACTED] in a general education class with a Resource Room program with a staffing ratio of 5:1 for 42 minutes daily (Exh. 19 at 1). The comments section indicated that the meeting was an annual review meeting, and a reading evaluation was conducted and that the student's parent and grandparent requested a research-based reading program to address difficulties with sight word efficiency, rapid letter naming, spelling and reading comprehension and that the teacher reported that the student had access to text to speech available in the classroom, but that he did not utilize the text to speech (Id.). The Reading section indicated that the Woodcock-Johnson-4th Edition ("WJ-IV") was administered, and the student scored in the limited range in the 9th percentile in board reading, his basic reading skills were in the average range letter in the 49th percentile, his passage comprehension score of 81, was in the 11th percentile (Exh. 19 at 5). The reading section indicated that the student struggled to comprehend when he was read and that identifying text evidence within a reading was a challenge (Id.). The writing section indicated that he received a scaled score of 99 in the 46th percentile, and that spelling was [REDACTED] and that his scaled score of 87 was in the 20th percentile and that the student struggled to put thoughts on paper and that writing a paragraph about a specific topic was a [REDACTED] and that his mathematic score of 89 was in the 24th percentile and his calculation score of 86 was in the 18th percentile, in the low range and that math was a strength (Id.). The IEP indicated that based on the WJ-IV scores that the student's written expression was strength, yet spelling, reading comprehension and calculation were a [REDACTED] and that he needed to improve written expression skills and needed a graphic organizer and needed moderate support to complete grade level written expression tasks and to needed to improve his writing, spelling and reading comprehension and calculation skills to complete grade level tasks and that his ability to process information was an area of concern to the parent (Exh. 19 at 6). The IEP indicated that the student was diagnosed with AHDH and involved in sports outside of school (Id.).
The IEP listed management needs of special education services as well as note taking assistance in the form of a copy of class notes, a graphic organizer to plan written assignments and checking for understanding in order for the student to be successful in the general education class as the student had "a significant delay in reading comprehension, written expression, attentional skills" which inhibited progress in the general education curriculum (Id.). The IEP indicated that the student did not require positive behavior support or [REDACTED] (Id.).
The IEP contained 8 goals: 2 study skills goals to utilize class notes to create a study guide for upcoming tests and to write or to print out his homework each night by utilizing his agenda or online teacher pages; 3 reading goals to underline/cite context clues to infer the meaning of unknown content based words; to use the "stop and jot" when answering "wh" questions; to provide 2 examples of text evidence to support a given idea; 3 writing goals to plan to write by using an organizer such as web; to spell 5 correctly in a writing assignment and to use proper spelling, grammar, capitalization, and punctuation to edit the writing piece (Exh. 19 at 8).
The IEP indicated modifications / accommodations of refocusing and redirection and directions explained, the use of a graphic organizer, a copy of class notes, checks for understanding and special seating closer to the teacher and testing accommodations of 1.5 on all tests, on-task focusing prompts and directions read to the student by a human reader (Exh. 19 at 8-9). The IEP indicated the student would participate in state and district wide assessments (Exh. 19 at 10).
An AT Evaluation was conducted by [REDACTED] AT Specialist, on May 15, and 28, 2019 on the student when the student was in [REDACTED] grade, who indicated that the student was referred for AT Evaluation to consider what tools would benefit the student to access the curriculum by addressing the areas he struggled in such as written expression, spelling, reading comprehension and math calculation (Exh. 16 at 1). The evaluator noted that the student was diagnosed with ADHD; inattentive type and classified as OHI as he had a significant delay in reading comprehension, written expression, attention which inhibits progress in general education (Id.). The evaluator noted that the Classroom Evaluation was conducted on May 28, 2019, during Social Studies and that the student raised his hand several times to answer and that he had the correct answer and at times he looked around the room off task and that the Resource Room teacher pushed into check-in several times during the class and that the Social Studies teacher indicated that the student's handwriting was difficult to read and that he did better when he typed things (Exh. 16 at 5). The evaluator administered the Protocol for Accommodations to assess the student's ability to read and synthesize information, orally with an adult reader, and with text-to-speech reader in [REDACTED] grade reading passages. The evaluator found that the student obtained the following scores: he answered 5 out of 12 (42%) of the questions correctly when reading to himself; he answered 8 out of 12 (67%) of the questions correctly when reading aloud and when read to by an adult; he answered 10 out of 12 (83%) of the questions correctly when he used Text-to-Speech Software (Exh. 16 at 6). The evaluator noted that while the 2018-2019 IEP indicated that writing was an area of strength; however, spelling, putting his thoughts on paper, writing a paragraph or essay about a specific topic were areas of [REDACTED] for the student (Exh. 16 at 7). The evaluator found that the student spelled [REDACTED] for Tuesday and did not use capital for days and spelled [REDACTED] for August and [REDACTED] for December and [REDACTED] for thirteen and [REDACTED] for thirty (Exh. 16 at 8). The evaluator noted that while the 2018-2019 IEP indicated that the student scored in the low to average range on Mathematical testing, he needed re-teaching and step-by-step instruction and prior testing showed that the student had difficulty with math facts and fluency. The evaluator used the Addition/Subtraction assessment and found that the student score 92 % in addition and 100 % in multiplication. His auditory reasoning and processing skills were in the above average range (Exh. 16 at 9). The evaluator noted that the student stated that it was difficult to organize his binder and folders and preferred verbal directions (Exh. 16 at 12), and that he had used voice-to-text software but was unsuccessful (Exh. 16 at 13). The evaluator recommended that the CSE consider the value of AT for the student for tasks that the student would be expected to complete when accessing the curriculum including access to print material, the output of written work, requirements of note taking skills, organization of curriculum materials and recommended that the student receive an [REDACTED] tailored to his needs for the categories of hardware/software, reading, written expression and EF (Exh. 16 at 14). She recommended the use of low tech [REDACTED] font for reading the text and high tech of [REDACTED], Read Write. and Snap & Read (Exh. 16 at 15). The evaluator recommended an electronic graphic organizer and Text-to-Speech software as listening back to a document may benefit the student (Exh. 16 at 16) and speech-to-text software for spelling as well as low- and high-tech study tools to address EF deficits (Exh. 16 at 17), as well as color coded folders, an electric calendar and electronic checklists (Exh. 16 at 18).
For the 2019-2020 year on May 31, 2019, the District's CSE classified the student with OHI with a diagnosis of ADHA and recommended that for [REDACTED] grade he be placed in a 10-month program in [REDACTED] in a general education class with a Resource Room program with a staffing ratio of 5:1 for 42 minutes daily and Direct Consultant teacher services twice per week for 1 hour at a location arranged by the parent (Exh. 3 at 1). The comments section indicated that the AT evaluation was reviewed and that the student was assessed in reading, writing and math and that misspellings and reversals were noted in his writing and that AT improved reading comprehension and that resource room teacher reported that the student had difficulty with typing and answering questions at the same time while using voice-to text and typing and that the student needed support breaking down assignments, his handwriting was poor and that he struggled to pick out the main idea (Id.).
The academic section indicated that the student needed to improve his written expression skills, a graphic organizer and moderate support to complete grade level written expression tasks and needed to improve his writing, spelling and reading comprehension in order complete grade level tasks (Exh. 3 at 6). The parent concerns of the student's ability [REDACTED] were noted and the special factors noted that the student did not require positive behavior support or a BIP (Exh. 3 at 7).
The IEP contained 13 goals: 2 study skills goals to utilize class notes to create a study guide for upcoming tests and to write or to print out his homework each night by utilizing his agenda or online teacher pages; 3 reading goals to underline/cite context clues to infer the meaning of unknown content based words; to use the "stop and jot" method when answering "wh" questions after reading a few pages; to provide 2 examples of text evidence to support a given idea; 3 writing goals to plan to write by using an organizer such as web; to spell 5 correctly in a writing assignment and to use proper spelling, grammar, capitalization, and punctuation to edit the writing piece (Exh. 3 at 9). The IEP added new goals in addition to the goals repeated from the March 26, 2019 IEP of 1 mathematics goal to highlight key words and phrases when solving multi-step word problems and 4 "other" goals: to use an electronic calendar to add assignments; to use AT tools to complete assignments and share assignments with teachers; to use an electronic folder system to organize papers and store documents and to advocate for his AT needs (Exh. 3 at 9).
The IEP repeated the March 26, 2019 IEP modifications / accommodations of refocusing and redirection and directions explained, the use of a graphic organizer, a copy of class notes, checks for understanding and special seating closer to the teacher. The May 31, 2019 IEP added access to compute all day in the classroom and AT service for 1 hour 25 times per year at home and school (Exh. 3 at 10). The testing accommodations of 1.5 on all tests, on-task focusing prompts and directions read to the student by a human reader were continued (Exh. 3 at 12). The IEP also indicated the student would participate in state and district wide assessments (Id.).
The transcript for the 2018-2019 school year [REDACTED] indicated that the student received final grades ranging from A + to B in classes including ELA, Math, Science and Social Studies (Exh. 2).
By letter dated June 24, 2019, [REDACTED] wrote to the parents to indicate that the student had progressed in his goals and attached the progress report for the 2018-2029 goals (Exh. 2 at 1). The report indicated that the student was making gradual progress ("PG") towards the study goal in November and January and was progressing satisfactorily ("PS") towards the study goals in April and June to create a study guide by utilizing class notes and discussions and achieved the goal to complete homework assignments (Exh. 2 at 2). The report indicated that the student achieved the reading goal to answer plot related questions to ensure understanding of text and was PS towards the goals to provide 2 examples of text-based evidence and was PS towards the goal to identify the author's point of view and was PS towards the goal to use analytical thinking skills (Exh. 2 at 3). The report indicated that the student was PS towards the goal to use correct punctuation and was PS to correctly spell 10 words from his reading assignments and was PS towards the goal to write up to 5 paragraphs and was PS towards the goal to use 3 concrete details to describe a real or imagined event (Exh. 2 at 4) and achieved the math goal to multi-operational problems using [REDACTED] (Exh. 2 at 5).
The Prior Written Notice dated September 19, 2019 indicated that the CSE refused the parents' request for reading support during the school day (Exh. 6).
On July 18, 2019, the parents' attorney wrote to [REDACTED] to express the parents’ concerns during the May 31, 2019 IEP that the CSE refused to consider 1:1 [REDACTED] instruction during the school day and ignored [REDACTED] evaluation and disagreed with [REDACTED] recommended educational program of daily Resource Room instruction for 42 minutes and Consultant Teacher services for 2 hours per week after school as the parents argued that the program was not reasonably calculated to enable the student to receive educational benefits as the IEP did not recommend O-G-based reading instruction (Exh. A at 5). The parents' attorney asserted that the denial for request for 1:1 reading instruction during school was an unjustifiable denial of services (Exh. A at 6). The parents withdrew their request for appropriate management needs (T.507) and withdrew their request for appropriate AT services (T.508) and withdrew their allegation that the IEP did not address the student's [REDACTED] and withdrew their request for SLT for the student (T.509). The attorney stated that the IEP had the following deficits: no sound comprehensive reading evaluation for the student; no comprehensive evaluation of the student in all areas of suspected disability (Exh. A at 9). The parents' attorney asserted that the CSE failed to timely respond to the parents' request for an AT evaluation and that the District significantly impeded the parents' right to meaningful participation in the development of the IEP and failed to appropriately consider the results of the IEE (Exh. A at 10). The parents' attorney argued that the October 18, 2018 and May 31, 2019 IEPs were based on available programs and not based the student's specific needs (Exh. A at 11) and the IEPs did not provide an adequate description of his present levels of performance and was defective; the IEPs' goals were not meaningful or measurable (Exh. A at 12). The parents withdrew the allegations that the IEPs did not address the student's [REDACTED] (T.518). The parents request the following: (1) an order finding that the District failed to provide a free and appropriate public education ("FAPE") during the 2018-2019 and 2019-2020 school years; (2) an order finding that the student required specialized [REDACTED] instruction and such instruction was appropriate and that the equities favor the parents and (3) an order that the District fund 5 one-hour sessions per week of 1:1 [REDACTED] instruction by a reading specialist trained in [REDACTED] for a total bank of 200 hours to be implemented during the school year and (4) an order that the District reimburse the parents for the January 21, 2019 reading evaluation in the amount of $1,600 (Exh. A at 13; T.523).
THE DISTRICT'S CASE
The District's case was presented in the testimony of the Director of Pupil Personal, [REDACTED], Special Education Teacher at [REDACTED], [REDACTED], ELA Workshop Reading Teacher, [REDACTED], and 7th grade Science Teacher, [REDACTED] 7th grade English Teacher, [REDACTED]; 7th grade and 8th grade Reading Teacher, [REDACTED].
[REDACTED], a holder of a doctorate in School Psychology and a School District Leader certificate, testified that she had been employed by the District as Director of Pupil Personnel Services ("PPS") since 2018 and was the Assistant Director of PPS in another district and was a certified School Psychologist and CSE Chairperson in another district (T.25). [REDACTED] stated that she participated in the May 31, 2019 IEP (Exh. 3) meeting along with the student's parents, the general education teacher, [REDACTED], the guidance counseling and the AT Specialist, [REDACTED] and that she reviewed the AT evaluation (T.28;32) and that the student received either Resource Room program or Direct and Indirect Consultant Teacher or both services since [REDACTED] grade. She stated that the team classified the student as OHI and recommended Resource Room daily as well as Direct Consultant Teacher services by [REDACTED] after school as well as AT technology of Chromebook and a bank of AT consultant hours (T.29).
[REDACTED] explained that response to intervention ("RIT") was a model used to determine how the students were responding to various interventions and that RIT was considered the lowest level of interventions in the classroom and provided examples of individualized or differentiated instruction for student at the Tier 1 level. Dr. [REDACTED] explained that the Tier 2 level was for students who did not respond to Tier I and that the Tier 2 level included AIS and that if students did not respond, then the Tier 3 level of special education services were offered (T.35). She opined that the student did not require 1:1 from Consultant Teacher services to pass from grade to grade (T.36;98) and noted that his report card for 6th grade was As and Bs in a high performing academically rigorous middle school (T.98). She maintained that the District was paying for Direct 1:1 Consultant Teacher services for the student to provide the parents with a solution for their concerns as the parents requested additional services to meet their child's needs. She opined that the ELA workshop would meet the student's needs and that if child who needed Consultant Teacher services, then that child would not be appropriately placed in a general education class (Tr. 37-39). She related that [REDACTED] was the reading specialist the District worked with and that [REDACTED] was a professor in literacy and that [REDACTED] never indicated that the student required 1:1 instruction daily (T.40). She explained that the reason that the District did not pay the full cost of $2,000 for the parents' IEE was because there was a District's cap for an IEE and that the parents were told that they could use the District's evaluator and the parents did not (T.41). She opined that ELA workshop, and the Resource Room program would meet the student's deficits (T.43) and that the student did not need Consultant Teacher services, but Consultant Teacher services were offered to the parent as an accommodation (T. 98).
On cross [REDACTED] stated that the student received direct Consultant teacher services since [REDACTED] grade in [REDACTED] the IEP dated April 5, 2016 (Exh. 24) and as the classroom teacher and reading teachers mentioned impulsivity and a tendency to rush through work (T.49). [REDACTED] acknowledged that she and the CSE were aware that [REDACTED] recommended [REDACTED], a specialized reading program for the student and that he recommended an integrated co-teaching class ("ICT") class as the least restrictive environment ("LRE") for the student, but she did not feel that she could agree or disagree with [REDACTED]'s diagnosis of a Specific Learning Disorder, Dysgraphia, ADHD and Dyslexia. [REDACTED] noted that she did not see the Learning Disorder in the classroom or Dysgraphia (T.56;71). She reviewed the June 21, 2017 IEP for 4th grade (Exh. 22) and noted that the Reading Teacher, [REDACTED] who worked with him at GES and the Special Education Teacher attended the meeting as did the parent and the grandparent (T.56). She reviewed the comment section that indicated that the parent wanted the student to be foreign language exempt and that the October 18, 2018, IEP (Exh. 20) team believed that the student should be foreign language exempt (T.61).
When questioned about whether the team members of October 18, 2018 IEP (Exh. 20) review had the results of the most recent reading evaluation of the student by Susan [REDACTED] (Exh. 10), conducted either the day before or the morning of the meeting, Dr. [REDACTED] was not if the parents were provided with her evaluation despite the fact that the parents were concerned about the student's reading deficits (Tr. at 66). She explained that the team changed recommendation from the March 26, 2019 IEP to daily Resource Room program for 43 minutes per week and therefore the team decided to discontinue Consultant Teacher services that had been provided since 3rd grade (T.74).
When questioned about why Consultant Teacher services were discontinued despite low reading scores, [REDACTED]was unable to answer, but she recalled that the Resource Room program was increased to daily to address reading deficits (T.77). She acknowledged that the parents requested a specialized reading instruction program as recommended by [REDACTED] but maintained that the CSE was unable to take all the recommendations in a single IEP (T.80). She recalled that [REDACTED] s reading assessment (Exh. 10) was discussed and that misspellings and reversals were noted, and that reading comprehension did improve with AT (T.77;81), and that the special education teacher who provided the Resource Room services was not a reading specialist (T.79).
When questioned about the March 26, 2019 IEP meeting [REDACTED] recalled that she chaired the meeting and that the team reviewed the AT evaluation as well as [REDACTED] reading assessment and that direct Consultant Teacher services were offered afterschool in an attempt to work with the parents (T.83). [REDACTED] maintained that ELA workshop would provide the reading support that the student needed during the school day, and that ELA workshop was offered to the parents but that only after school reading services were offered (T.84). [REDACTED] stated that per the March 26, 2019 IEP that the student received extended school day instruction and would receive summer services (T.99).
When questioned about [REDACTED] recommendation for specialized reading instruction at least 3 times per week, [REDACTED] stated that the student was able to receive the services outside of the school setting (T.84). She explained that the District was attempted to work with the student's family to meet the student's needs and offered the ELA workshop and that the fact that Resource Room teacher could work with the student to develop his TA skills to work with him with the Chromebook to address his handwriting issues (T.88) and opined that the student did not required individualized reading instruction (T.89). She opined that in the District setting that the student could not receive direct Consultant teacher services during the school day in the general education class in the LRE (T.90). [REDACTED] acknowledged that the student received extended school day services but opined that the student did not require extended day services to prevent day-to-day regression (T.92).
When questioned about the letter from [REDACTED] (Exh. K) indicating that [REDACTED] was not able to access information about the student, she was not able to answer. [REDACTED] acknowledged that [REDACTED] had indicated that the student's vocabulary was low for his age and grade (T.94). [REDACTED] explained that [REDACTED] did not have any ICT classrooms and opined that his reading, writing and math skills were too high to consider placing him in an inclusion class (T.95). [REDACTED] stressed that while she oversaw the special education program for the District that there was no reason to have direct contact with [REDACTED] and noted that the Resource Room teacher and [REDACTED] were in contact with each other during the 2019-2020 (T.96).
[REDACTED] a possessor of NYS certification for Students with Disabilities for grades 5 through 9 and a Masters' Degrees in Special Education and Social Work, employed by the District for the past 12 years and employed as the Resource Room teacher in 7th grade for the 2019-2020 school year, testified that she pushed into some of the student's classes (T. 102;127) and that the student was resistant to work on [REDACTED] subjects such as spelling and the he wanted to work on math homework (T.107). She stated that his reluctance was no different from any other 12-year-old who did not want to do work (T.109). She stated that his educational needs manifested in [REDACTED] issues such as planning to write, copying incorrectly information from the board, organizing his thoughts and expressing his thoughts (T.112). She opined that the student required Resource Room services to address [REDACTED] and to address writing deficits. She recalled that she participated in the 2019-2020 IEP meetings in May and September and that she told the team that the student was working on his goals (T.115). She opined that the student did not require 1:1 [REDACTED] instruction because he did not have an intense level of deficit in reading and that he was making progress in reading (T.116). She opined that the student progressed in his goals as noted on the November 2019 progress report for the 2019-2020 school (Exh. 18 at 1) that indicated the student achieved a mark of PG on the study skills goal to utilize class notes to create a study guide (T.114), and that she worked with him by a AT tool, [REDACTED] opined that it was an appropriate goal (T.117). She further opined that the 2nd study skills goal to write or printout his homework each night was an appropriate goal and that she helped the student with the goal by using Google classroom to click the "mark" box in lieu of printing his homework (T.118). She explained that she was responsible to implement the reading goals and opined that to find context clues and from the textbook was an appropriate goal and that the student achieved a mark of PG and opined that the using the "Stop and jot" method and answering "wh" questions for the 4th and 5th goals were appropriate reading goals and the mark for both goals was PS (T.120). She opined that the 6th goal was to plan writing assignments with an organizer such as web, and the 7th goal to spell to spell 5 words correctly and the 8th goal to use proper grammar, spelling and punctuation were appropriate writing goals and the student achieved a mark of either PG or PS in the November 2019 (T.123)
When questioned about the [REDACTED] Reading Evaluation (Exh. 11 at 13), [REDACTED] stated that she was able to implement the recommendations through her Resource Room class and she was currently working on the Stop and jot" and the "voice-to-text and the use of visuals as a manipulative to help the student understand. She stated that she used index cards to make shapes to help him understand geometry (T.124). She explained that she used AT with the student by the "voice-to-text" in his Chromebook and he had the use of textbooks online so he could highlight key words (T.125). She opined that the student only required a special education teacher in a group and that 1:1 special education would have an adverse effect on his [REDACTED] (T.128;131) and that all the students in her Resource Room class had access to technology so the student was not singled out for using it and that the student was confident in her class (T.130). She stated that homework was not addressed in the Resource Room class, but that she worked on reading comprehension and test preparation and that the academic content was the same for the teachers in the greenhouse as the students have the same tests and the same homework (T.181).
On cross [REDACTED] stressed that the student did not require 1:1 consultant special education teacher support in or outside of school (T.133) and opined that the 1:1 consultant service was on the student's IEP merely as a concession to the family and that she provided organizers in her classroom (T.135). She acknowledged that she was unaware of what strategies [REDACTED] used after school and that she was not a reading specialist and that she had exchanged at least 6 emails to date with [REDACTED] but was not aware of any collaboration with any other teachers (Tr. 136). She stated that she discussed the student's progress with his parents, and that the student did not want to use technology to write because he had too many books to carry to his classes and that he wanted to leave the device in the Resource Room class (T.138). She explained that she pushed into the student's math or English class every other day to provide the student with extra support but was not aware if [REDACTED] spoke with the student's math or English teacher (T.142).
When questioned about the grades of 30 % and 52 % on daily assignments from September 2019 to November 2019, (Exh. B) and her Educational Evaluation conducted by the student on October 11, 2018 (Exh. 7), she acknowledged that the student performed in the low range in reading fluency, math calculation, math fluency on her assessment in a 1:1 setting (T.148). She stated that she collaborated with the student's teachers and noted that the student received some high grades of 100 % and maintained that student was able to succeed when he wanted (T.151).
When questioned about the grades from September 2019 to November 2019 (Exh. F), she stated that the student received a C + in English and Social Studies and noted that points were deducted when he did not answer content-based questions (T.152). She stated that when she pushed into the student's English class to check for understanding that she also worked with 9 other students (T.154).
When questioned about an assignment in the fall of 2019 (Exh H at 5), She acknowledged that the student correctly answered 13 out of 25 questions (T.159). She stated that she provided an organizer (Exh. H at 7) in social studies and that the student's special education teacher [REDACTED] provided a document to check for understanding (Exh. H at 8) and the student correctly answered 4 questions out of 12 and that she was aware of [REDACTED] 's email (Exh. K) dated September 29, 2019 indicating that his vocabulary was low for his age and grade and that the student could not remember what to do for his homework (T.162), and that his handwriting was not appropriate, but was typical for the students in her class (T.164).
When questioned about modifications in the classroom, she stated that the student received program modifications, refocusing and graphic organizers and that she ensured that the teachers check for understanding by walking around the room (T.168) and that the student received extended time for tests and opined that the student responded well to the accommodations (T.171). She stated that she worked on the IEP goals with the student and while he made PG, the student was making less than anticipated progress (T.173) and that the student was reluctant to use a graphic organizer in his classes (T.177). She acknowledged that she provided 1:1 special education support in her class of 5, but that the student manifested his resistance to her intervention by talking to a classmate (T.179).
[REDACTED], Reading teacher at [REDACTED], a possessor of a Master's degree in reading and a NYS certificate to teach reading to K to 12 (T.256), and a NYS certificate in Administration, testified that the student's NWEA progress report (Exh. C) was used by the District to report the scores that the students achieved in tests twice per year (T.190). She stated that in the fall of 2019 that student had achieved a score of 209 and that the average 7th grade reading score was 217 so the student required support in English Language Arts (T.193). She opined that the recommendations outlined in the [REDACTED] Reading Evaluation (Exh. 11 at 10) could be addressed in her ELA workshop (T. 193-194), and that her classes were designed to reinforce and reteach the content classes (T.263). She stated that during the ELA workshop she used the multi-sensory approach with a focus on kinesthetic and tactile manipulations and that there was an opportunity for manipulating phonemes, morphemes, sounds and parts of words (T.214). She stated that a smart board was used in her class and that her students could write on the board and that she used puzzle pieces and games to support learning the sounds and letter parts of words so she could implement the recommendation (Exh. 11 at 10) and that she used frequent drills for long and short vowels, diagraphs and diphthongs (T.217). She stated that her students had lists of required words for 7th graders and lists of reading vocabulary and that she used rapid naming and the syllabicating (T.218). She stated that she used Lindamood Bell Seeing Stars and Visualizing and Verbalizing to help students who have difficulty with symbol imagery (T.219). She stressed that she met with teachers and requested that the teachers respond to her questions (T.221) and that she reported to the parents on the progress her students made in comprehension and executive functioning on the NYS 1-4 scale (T.222). She explained that the ELA workshop met for 38 to 42 minutes either 2 days or 3 days per week and that her class had up 12 students (T.223). She related that she used [REDACTED] and [REDACTED] as recommended on the [REDACTED] report (Exh. 11 at 12), as well as card pyramids and that she followed the curriculum of the core teachers and that she asked inference questions (T.226). She explained that a lot of students had difficulty with "Talk-to-Text" and that it depended on the student's differentiated needs and that she spent 10 minutes of the class going over the agenda and then broke the class into small groups of 4 students who move around the room to 3 different tables to work on phonemes and letter sounds, to work on syllables and to work on puzzles (Tr. at 235). She stated that the student could have been received daily ELA workshop and while the student was not part of her ELA class because the student was in a different house as the students in [REDACTED] separated into different houses (T.265), but that she opined that she was familiar with the ELA greenhouse (T.266) and could have been the student's teacher (T.269).
On cross [REDACTED] stated that the student was not in her class and that she had met him once as she performed an assessment of his reading abilities in October 2018 before the IEP meeting (T.239). She stated that she taught the combined 6th grade and 7th grade ELA class for English Language Learners ("ELL") or students whose primary language was not English (T.241) and that her ELA class was in the [REDACTED]. She described that reading levels of the children in her class as mid-2nd grade to about 5th grade and that the children in her class had full access to the single Chromebooks, but that there were no other TA devices in her class (T.245-246). She stated that she did not send the report to the parents as privacy was important and the student was not her student, but that she provided the report to the Director of Special Education (T.254-256). She stated that she was not trained in Lindamood Bell but attended a workshop for a single day in both [REDACTED] and Lindamood Bell (T.259). She acknowledged that the District did not provide a specialized reading program but noted that her ELA was similar to the [REDACTED] ELA class in that there was a mini-lesson and differentiated instruction for the students (T.268).
[REDACTED], 7th grade Science Teacher, employed by the District for 12 years and as a teacher for 17 years and a possessor of NYS certification as a General Science, Biology, Earth Science and Living in the Environment teacher with a Master's degree in technology, testified that the student was his student in Science class for the 2019-2020 school year (T.274). He stated that the student was an active participant and was very confident and that his class contained reading from PowerPoints and WebQuest and he noted that the student achieved an A- grade during the 1st quarter with an 88 average in a class of 27 students and noted the student had no [REDACTED] (T.276).
On cross [REDACTED] stated that his class relied on manipulatives and kinesthetic learning and that the student enjoyed and responded well to those outdoor and hands on activities and that science was his favorite subject (T.277-278) and that he sued Google Classroom with study aides (T.279).
[REDACTED], 7th grade English Teacher, employed by the District for 19 years and as employed as teacher since 1989 and was employed as the 7th grade English Teacher for 10 years and a possessor of a Master's degree in Education and a holder of a NYS certificate to teach English grades 7 to 12, testified that she was the student's teacher for English class for the 2019-2020 school year (T.283-284). She described the student as a confident student with good participation and capable of presenting a well-developed oral presentation regarding his reaction after reading a book entitled [REDACTED] and that he provided supporting details for his assertions (T.285). She stated that he was less anxious than her other students because he wanted to succeed, but that he would do better with more sustained consistent work (T.287). She noted that his strengths included his auditory learning and that he had an opportunity to seek extra help as posted on the school's website were hours after or before school to come to talk about problems (T.293). She stated that for the 2019 NWEA ELAL exam that the student received a 209 score in the fall in 2019 (Exh. C) and that a score of 209 indicated that the student had to strengthen his reading skills and that he needed to understand context clues as well as cause and effect, but she maintained that she worked on those deficits in her class (T.294) and that the score of 209 was not the lowest score on the NWEA in her greenhouse 7th grade English class as 12 students scored lower and the lowest score was 197 (T.298).
When questioned regarding the quiz (Exh. D) that she gave the student who achieved 16 out of 30 points, she stated that the student put more effort in understanding the literary elements than in vocabulary (T.296) and that the student could have studied more (T.297). She opined that the student was able to achieve passing marks and advance to 8th grade English class and that she wished that the student would come to her for extra help as he struggled on quizzes (T.300). She indicated that she was impressed by what the student was able to achieve in her class and that his homework was good (T.301). She noted that the student preferred to handwrite rather than type and that his spelling errors were careless errors and that his written work would benefit from proof-reading (T.302) and that the student received a grade of C+ for 1st and 2nd semesters in her class (T.308).
On cross [REDACTED] stated that she had 26 students in her class included the student (T.309). She recalled that [REDACTED], the special education teacher who provided remedial services, pushed into her class on a regular basis and provided Resource Room services to the student as well as other students and that she spoke with [REDACTED] daily (T.310-311). [REDACTED] explained that she was aware of the student's IEP goals of word identification and understanding, that she could not just provide 1:1 instruction with the student and that she created the graphic organizer for the entire class. She recalled that [REDACTED] would create her own chart from the graphic organizer for vocabulary words and literary elements to help her Resource Room students focus. [REDACTED] explained that she modified all exams for the student and that there was a large range of ability in her class as some students were college level readers and some were very below the student's abilities (T.313-315). She stated that the reading grade levels varied in her class from 3rd grade to higher level high school graduates (T.316).
When questioned about how frequently she communicated with [REDACTED], [REDACTED] stated she was not sure and that she attempted to connect by e-mail (T.317) and they had exchanged 5 e-mails so far (Id.). [REDACTED] was unable to answer questions regarding [REDACTED] assistance in helping the student with his essay regarding [REDACTED] (T.318-320). She stated that she assigned independent reading and that [REDACTED] may have helped the student with a reader response, but she was not sure (T.321). She acknowledged that the student was dyslexic and that he did not use audio books in her class (T.322), and that the student had not volunteered to read aloud in class and that she never called on him to read aloud (T.323). [REDACTED] stated that she did not recall if the student had trouble retaining information, but recalled that he had trouble with fluency as reported on his IEP (T.327)
When questioned about the student's work samples regarding questions of [REDACTED] (Exh. H at 3), [REDACTED] noted that she was unsure if anyone helped the student answer the questions and stressed that the physical act of writing was very hard for the student and that he had problems with spelling and capitalization like many of her students (T.329). She reviewed the Literary Elements graphic organizer (Exh. H at 4) of the student's work sample and noted that she did not provide the graphic organizer but opined that [REDACTED] produced the graphic organizer (T.331). She was unable to recall if the student used the graphic organizer prior to answering questions and that the quiz (Exh. H at 5) indicated that he correctly answered 13 out of 15 questions in a social studies test (T.331). She stated that she created the graphic organizer (Exh. H at 7) and noted that in the beginning of the year that on September 8, 2019, (Exh. H at10), that the student wrote in complete sentences and that he answered the questions; she opined that his written work indicated a student who had difficulty with writing with the size and a space of letters and the written work contained misspellings (T.335).
When questioned about the AT, [REDACTED] stated that the student had access to AT in her class, but that he did not use AT in the classroom and that she had 3 computers in her class and that some of her student had access to computers outside of class (T.336). She stated part of the student's written work contained a note from [REDACTED] (Exh. H at 8) that indicated that the student correctly answered 4 out of 12, but that the words were not typical words for a 7th grader and that the words did not related to content at school but were words in isolation the [REDACTED] gave to the student (T.337).
When questioned about the handwritten answers from the student regarding books read over the summer (Exh. H at 10-11), [REDACTED] stated that she was pleased that the student was able to answer basic questions because she knew that he did not like to read (T.338). She stated that she modified the quizzes for the student because she did not want him to experience failure and that [REDACTED] modified homework for the student (T.339) and that she modified the classroom assignments so that the student needed to produce only the important points and opined that the student would benefit from asking his teachers for help and that the student was capable of receiving better grades (T.344).
[REDACTED], Reading teacher and a possessor of a Master's degree and a NYS certification as a Reading teacher and was the 7th grade and 8th grade Reading Teacher for the [REDACTED] for the 2019-2020 school year, testified that she tutored the student for a few weeks during the 2018-2019 school year twice per week of individual sessions after school from February 2019 to March 2019 for a hour per session (T.360), and that the typical class began with the agenda on PowerPoint on the smart board and then a mini lesson and that individual work with her students to support their weaknesses in the students' core classes in terms of spelling or vocabulary (T.346).
[REDACTED] stated that she was familiar with [REDACTED]s ELA workshop and that her program was similar as she worked small groups and coordinated with the core teachers to help supplement her ELA students' weaknesses in core subjects (T.347). She stressed that she used a lot of visuals, besides the smart board and Chromebooks and Google Classroom (T.348). She reviewed the [REDACTED] evaluation and opined that she was able to implement the recommendations in her7th grade ELA workshop class and that she was starting to use the [REDACTED] program, an online program similar to NWEA to assess progress (T.349). She recalled that she used audio books and "Stop and jot" or chunking and texting and her students worked on comprehension questions after quickly scanning an article and that there were 6 students in her class with reading levels that ranged from a few levels below grade level to above grade level (T.350). She noted that she worked closely with the greenhouse teachers and was in constant contact with [REDACTED] to communicate the skills and strategies she used with her ELA class (T. 351). She stated that the reading comprehension level of her class ranged from the 3rd grade to the 5th grade to the 7th grade depending on the period and that she would place him in the class for the 5th grade to the 7th grade reading comprehension and spelling ability (T.354).
On cross [REDACTED] stated that she provided 1:1 after school tutoring because the District recommended the service because the student required the instruction and that she worked on reading comprehension, fluency drills, spelling and on his homework (T.361). She stated that she never provided 1:1 during the school day because she only provided ELA workshop during the day (T.363). She acknowledged that she was aware of the recommendation for specialized reading, but in the ELA workshop there was no specific program and that she used whatever program fit the child (Id).
THE PARENTS' CASE
The parents argued that the student had received services since 3rd grade due to the diagnoses of ADHD, dyslexia and dysgraphia. The parents asserted that the student loved school, his teachers and his peers, but struggled to read and despite tutoring at home and services at school became [REDACTED] (T.365). The parents asserted that they obtained the private neuropsychological evaluation that indicated that the student required specialized reading and the CSE agreed that the student required specialized reading as it was recommended on the May 31, 2019 IEP (Exh. 3) and CSE recommended that 2 hours of direct special education instruction by an [REDACTED] certified provider; however, the CSE offered the service outside of school. The parents argued that as the student was not an extended day child this afterschool recommendation was inappropriate (T.367). The parents requested that the direct service be provided in school. The parents asserted that the failure to provide direct special education instruction by an [REDACTED] certified provider in school was inconsistent with the consultant teacher model because there was a lack of collaboration between the reading specialist and the school staff (T.368). The parents maintained that the inability to provide the services during the school day meant the services were not in the LRE as the student required individual specialized reading instruction and requested that the CSE provide specialized reading instruction during the school day (T.370).
[REDACTED], Director of the [REDACTED] Education and Research, a possessor of a Master's degree in special education and experienced in the special education field for 27 years, and a holder of certifications in [REDACTED] based programs, the Wilson reading system at Level One, as a dyslexia therapist through the International Dyslexic Associations in the Lindamood Bell programs including Visualizing and Verbalizing and Seeing Stars as well AT as a specialist, testified that she was special education teacher in the public school systems at all levels except for residential and had worked with students K through 12 with all disabilities including autism spectrum, communications disorder and specific language disabilities (T.373-374).
[REDACTED] stated that she started her business to offer clinic-based services to students and parents and to provide consultation and AT and specific reading and specific language and specific math instruction (T.375). She explained that she provided district services that included workshops and professional developments and direct service in AT (T.376).
[REDACTED] stated that [REDACTED] Education and Research provided 2 evaluations on the student, the initial evaluation was dated January 21, 2019 (Exhs. 11;G) and the updated evaluation dated November 11, 2019, (Exh. J) and noted that the initial evaluation was done at the request of the parents to evaluate the student's reading and she stressed that she was familiar with [REDACTED] evaluation and did not want to duplicate any tests (T.378). She explained that the initial evaluation assessed 5 areas of reading: phonemes process (phonemic awareness), phonics, fluency, vocabulary and comprehension (T.380). She stated that she used the GORT-5 for fluency and comprehension, the WISC-5 for word identification, and the COTPP-2 for phonological processing and that the student's scores ranged from below average to superior (T.383). She stressed that the student had superior to average phonological abilities with average cognition and decent vocabulary but was unable to blend sounds (T.385). She explained that the GORT-5 revealed that the student had issues reading words in context, reading rate, reading accuracy and reading fluency (T.387). She indicated that while the student's reading comprehension score was in the average range, his reading rate was slower than his peers and concluded that because the student had trouble with unfamiliar texts, word recognitions and fluency and that these deficits would impact his comprehension (T.388). She noted that the WISC-V scores indicated that reading efficiency and spelling were below average as he missed double letters and silent letters (T.391). She further noted that his lowest score was on the Gray Oral Reading test and that the student did not read quickly, and used the total time allotted, but the score was in the very poor range (T.392). His handwriting abilities as assessed on the TOWEL revealed below average spelling and vocabulary as his sentences were very limited and minimal (T.393). She opined that the student faded in his ability to produce handwriting to finish the essay as he had asked to use the bathroom and to call his parent during the assessment (T.394).
[REDACTED] described the student's strengths in his average phonological abilities and opined that the student produced his best effort on the tests but noted that the student had dyslexia despite good phonological processing and this ability was consistent with [REDACTED]'s assessment. She found that the student's word reading efficiency issues based on his recognitions skills and applications in fluency were delayed so he was unable to effortlessly and fluently read (T.396). She recommended services to address his deficits in blending sounds in the classroom or in the academic setting (T.398). She stressed that the student had to develop his rapid naming and frequent word retrieval and that these deficits could be worked on in a specialized class type of setting (T.399). She stated that the student required direct explicit instruction in word recognition to address spelling deficits and direct instruction in fluency so that he would be able to access his comprehension abilities by a O-G based program or a Wilson program uniquely crafted as an intervention to buttress his average phonological processing (T.400). She recommended a customized Wilson program or the Seeing Stars program that provided a word recognition program and recommended a specialized reading program for the student 3 times per week at a minimum and targeted instruction to address specific deficits (T.402).
[REDACTED] stated that she recalled that she participated in the CSE meeting on March 2019 and discussed her evaluation that the CSE recommended continued Resource Room/Consultant teacher support and the use of multi-sensory techniques (T.405). She stated that she recommended AT and specifically "text-to-speech" and "speech-to-text" software (Id.). She recommended handwriting assistance tools to address his Dysgraphia (T.406). She stated that she recalled that the CSE team did not state that they were willing to place O-G instruction on the IEP (T.407). [REDACTED] stated that she reevaluated the student in October 2019 and completed the report on November 12, 2019 (Exh. J) and noted that the student was assessed by the Gray Oral Test again noted that the student displayed average ability in vocabulary, and silent reading fluency and oral reading fluency were above average so there was growth (T.411). She opined that her recommendation remained unchanged as the student continued to require explicit structured [REDACTED] based instruction for the student to improve all areas of deficits (T.411), as Dyslexia never goes away and his fluency and comprehension broke down with more complex reading material (T.418). On cross [REDACTED] stated that she had not spoken to the student's 7th grade teacher and was not familiar with the [REDACTED] workshops and did not observe him in the classroom and was not familiar with the curriculum (T.412).
The parent recalled that the student had problems with reading in Kindergarten and 1st grade and that she was in constant contact with his teachers. She stated her son received AIS reading, but he continued to struggle with reading and in the summer before the 3rd grade she requested a neuropsychological evaluation. She recollected that after [REDACTED] 's evaluation was authorized the student was diagnosed with ADHD, Dysgraphia, Dyslexia and a Language Disorder (T.431). She stated that she worked with her son each night with homework and that he was upset and would [REDACTED] even in the 7th grade because he was an overachiever and was aware of his inadequacy and that to write an assignment each Wednesday that required him to produce a paragraph with correct spelling, and punctuation yielded meltdowns (T.433). She related that her son would say [REDACTED] and the gap between her son and his peers continued to widen (T.503).
The parent recalled that [REDACTED] recommended 1:1 [REDACTED] instruction and an ICT class and that she participated in the April 5, 2016 IEP (Exh. 24) team meeting and that she presented the team with [REDACTED]'s neuropsychological evaluation (Exh. 9) and recalled a discussion regarding the psychological evaluation (T.435), but the team stated that there were unable to place the student in an ICT class and recalled that the team recommended for 4th grade direct consultant teacher services 3 times per week (Exh. 22;T.437). She stated that her son struggled with his homework and his ability to keep up in class in 4th grade and that the April 26, 2017 IEP (Exh. 22) IEP for the 5th grade she told the team that she did not see progress (T.443).
The parent recalled that she participated in the April 16, 2018 IEP (Exh. 21) meeting and recalled that she requested [REDACTED] place her son in an ICT class for the middle school but was told that the student was too high functioning and that during for 5th grade that the team discussed her son's progress with the Resource Room teacher and the consultant teacher but opined that the support they provided was not specialized to his needs (T.447). She stated that in 6th grade her son was drowning and melting down in September 2018, so she requested and immediate meeting and that on October 18, 2018, the team met to develop an IEP (Exh. 20) to increase the Resource Room recommendation to 5 times per week in a group of 5 children and that the Consultant Teacher services were removed (T.448;453).
The parent stated that the ELA workshop would not provide sufficient support as her son received building level reading program since for 3rd grade and that the ELA workshop was a school wide service of AIS and not special education services for him (T.450;456). She stated that she informed the October 18, 2018 IEP team that her son did not benefit from the ELA workshop and that her son was struggling in Spanish and her son required specialized reading instruction but was told that the CSE could not recommend specialized reading and that only the Executive Director, [REDACTED], could recommend it and that [REDACTED] did recommend the reading instruction after school (T.459), which commenced in May 2019 (T.460;473). She stated that [REDACTED] 's Reading Summary (Exh. 10) and the Educational Evaluation (Exh. 7) did not present a full picture of her son so she requested an IEE from [REDACTED] on November 5, 2018 (Exh. I) in writing and as well as verbally (T.466-468). The parent recalled that the team agreed to provide an IEE by [REDACTED], but that she was unable to receive a quick response from [REDACTED] so she contacted [REDACTED] to arrange for another evaluation as soon as possible as [REDACTED] was unavailable (T.469). She stated that she provided [REDACTED] 's evaluation (Exhs. G,11), dated January 12, 2019 to the CSE and that [REDACTED] participated in the March 26, 2019 IEP (Exh. 19) meeting and recalled that she and [REDACTED] requested specialized reading instruction and requested compensatory reading services over the summer because her son had missed so much time but was told again that only ELA workshop was available over the summer (T.478). She stated that for the 2019-2020 school year the May 31, 2019 IEP (Exh. 3) recommended AT services and that the AT evaluation indicated that as a 7th grade student her son could not spell the days of the week or the months of the year (T.481).
The parent recalled the CSE recommended consultant teacher services after school with [REDACTED] and that she informed the May 2019 IEP team that the direct services must be provided in school and that her son spent 3 hours each night to complete homework during the 2018-2019 school year (T.485). She recalled that in the fall of 2019, her son's Social Studies quiz results that indicated that he incorrectly answered 13 out 15 questions and while the CSE told her that her son achieved As in science and math, she worked with her son each night on English and Social Studies and that she was not aware that the English teacher was modifying assignments, so her son had a reduced assignment (T.490). She recalled that her son started seeing [REDACTED] over the summer of 2019, and that [REDACTED] used a strict [REDACTED] program and that [REDACTED] told her that her son did not know what a noun was (T.493), and that [REDACTED] told her that her son was struggling emotionally working with her from May 2019 to January 2020, and that [REDACTED] was not able to provide support during the school day (T.499). She recalled that she requested [REDACTED] instruction during the school day at the September 19, 2019 IEP (Exh. 5) meeting but was told that only ELA workshop was available (Id.). She stated that she would continue with [REDACTED], but that the travel time to and from [REDACTED] was 3 hours and she could not understand that while the CSE acknowledge the need for Direct Consultant Teacher servicers that it was impossible to provide those services during the school day (T.502).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Under the Individuals with Disabilities in Education Act ("IDEA"), New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student, but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful, i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR 200.4(d)(2)(i), (iii), (v). The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations.
(2018-2019)
Claims concerning the failure to recommend an education program reasonably calculated to confer a benefit The District asserted that the IEP must be "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, 1001 (2017). An IEP must be reasonable, not ideal. Id. at 999. "For a child fully integrated in the regular classroom, an IEP typically should be ‘reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.'" Id. (citing Rowley, 458 U.S. at 204)"(Exh. VIII at 8).
The District argued that the "IEPs for 2018-19 were reasonably calculated to enable him to achieve passing marks and advance from grade to grade. See id. at 204. Indeed, the District’s provision of Resource Room to [the student] five (5) times a week during sixth (6th) grade allowed him to earn not only passing, but excellent, marks in general education classes and advance from sixth (6th) to seventh (7th) grade."(Id.). The District argued that it "satisfied the FAPE requirement for the 2018-19 school year. See Rowley, 458 U.S. at 202. See also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998) ('when a disabled child is in a mainstream class[,]... the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress.'); M.F. v. Irvington Union Free Sch. Dist., 719 F. Supp. 2d 302 (S.D.N.Y. 2010) (same); C.FI. v. Goshen Ctr. Sch. Dist., 2013 U.S. Dist. LEXIS 44991, *43 (S.D.N.Y. 2013) ('Achievement of passing grades and regular advancement in a general education class... is evidence of a FAPE.')" (Id).
I find that there was no dispute that the student achieved passing grades during the 6th grade, as the transcript for the 2018-2019 school indicated ranging from A + to B in classes including ELA, Math, Science and Social Studies (Exh. 2). However, I find that the record was replete with testimony and evidence of the student's struggles with reading, writing and attention and that he exhibited [REDACTED] he was not able to meet the demands of school as indicated by the BASC-3 and made comments to himself [REDACTED] (Exh. 9 at 12; T.503). I find the IEPs (Exhs. 19-24) documented the student's historic struggle with EF, math reading, grammar, spelling and that he was falling behind as the April 5, 2016 IEP indicated that the student qualified for reading support and that there were concerns about anxiety or attention and that he "appears to lack confidence" (Exh. 24 at 2). The June 21, 2016 IEP indicated weaknesses in math fluency, errors in spelling and punctuation and that the student had a difficult time starting assignments and organizing himself independently and that his mother indicated that homework was extremely difficult, and that the student could not start many writing assignments and needed constant support to complete open-ended assignment (Exh. 23 at 1). The April 26, 2017 IEP indicated that the student [REDACTED] and that [REDACTED] and that the parent reported "great difficulty with homework and retaining information" (Exh. 22 at 1). The academic, development and functional needs section indicated that the student needed to "improve his written expression and reading comprehension skills" (Id.). The April 18, 2018 IEP indicated that the student needed special education services to be successful in the general education classroom and had a "significant delay in reading comprehension, written expression, attentional skills which inhibits progress in the general education environment" (Exh. 21 at 5-6). The October 18, 2018 IEP again indicated "significant delay in reading comprehension, written expression, attentional skills which inhibits progress in the general education environment (Exh. 20 at 7). I find an inconsistency in that while the March 26, 2019 IEP indicated WJ-IV scores that the student's written expression was a strength, and yet spelling, reading comprehension and calculation were a [REDACTED] and that he needed to improve written expression skills and needed a graphic organizer and moderate support to complete grade level written expression tasks and to improve his writing, spelling and reading comprehension and calculation skills to complete grade level tasks and that his ability to process information was an area of concern to the parent (Exh. 19 at 6). I find that the evaluative data from [REDACTED] 's WIAT-III indicated weaknesses in written expression and math fluency (Exh. 9 at 11) and the NEPSY-2 results indicated that the student was "reported to display his difficulty inhibiting or blocking out competing, off-task thoughts" (Exh. 9 at 5) and that the student's tendency to rush and make careless mistakes was another aspect of inhibition as he scored in the >2nd percentile in the ability to copy geometric shapes because he rushed and copied shapes inaccurately (Id.). I find that [REDACTED] noted variable scores in the subtests: a verbal comprehension index score of 8, in the 25th %tile, a visual-spatial index core of 9, in the 34th %tile and a processing speed score of 6 in the 9th %tile (Exh. 8 at 3) and concluded that the student's "ability to process simple auditory information far outweighs his speed of visual-motor processing" (Exh. 8 at 4).
I find the Educational Evaluation WIAT-III scores indicated areas of weakness were in schwa vowels and sentence structure as he often omitted punctuation and lacked endurance (Exh. 7 at 6). I find the [REDACTED] evaluation indicated CTOPP-2, GORT-5 and GSRT scores in reading rate, accuracy and comprehension ranged from below average to poor (Exh. 11 at 3) and that the student's oral and silent reading on the GORT-5, TOWRE-2, GSRT and COTPP-2 were in the below average to poor range and that his reading comprehension, accuracy, fluency were in the below average range and the student "skipped whole lines of text, did not acknowledge punctuation and, as incidents increased, he became more disconnected with the text" (Exh. 11 at 7). I find that the student's oral and silent comprehension skills as assessed on the GORT-5 test were in the very poor range and his writing as assessed by The Test of Written Language-4 indicated "sentences were not consistently well constructed and at time were fragmented or poorly punctuated" (Exh. 11 at 8). I find that the [REDACTED] evaluation noted that the student "handwriting appeared more scribbled and unclear when he wasn't confident in the spelling of a word"(Id.). I find that passing grades alone did not establish that the IEP was “reasonably calculated to enable a child to make progress" as I find as asserted by the parents' attorney that the student achieved "passing grades because of all the extra work and instruction he was provided at home by the parent (Tr. 459)"(Exh.VI at 22).
Claims concerning insufficient evaluations and inappropriate and insufficient IEP The parents' attorney asserted the "neuropsychologist unequivocally stated that [the student] should be placed in an ICT classroom and that he needed (either 1:1 or small group) an evidence-based, multi-sensory [REDACTED] reading instruction program three periods per week (Tr. 9-16)"(Exh. VII at 19).
I find that the District failed to present evidence or testimony to establish that their proposed program during the 2018-2019 school year would have met [the student's] unique special education needs for an ICT class or 1:1 or small group of not larger than 3 O-G instruction. The Second Circuit held that the District must offer testimony to meet its burden of proof. See L.O. v. N.Y. City Dep’t of Educ.,822 F.3d 95, 110-11 (2d Cir. 2016). The parents argued that the CSE did not consider [REDACTED] 's neuropsychological evaluation and the IEPs did not reflect [REDACTED] s recommendation for an ICT classroom or 1:1 or small group [REDACTED] instruction not larger than 3 and instruction in reading comprehension, extra support in tasks that require planning and prompting to regulate his pace (Exh. 9 at 16-17).
I credit the testimony of [REDACTED], who explained that [REDACTED] did not have any ICT classrooms and opined that his reading, writing and math skills were too high to consider placing him in an inclusion class (T.95). I find that the October 18, 2018 IEP did not meet the student's needs and was predetermined and was based on the District's availability of ICT classes and not on the student's unique needs and did not meet the LRE mandate. As the parent's attorney argued in Application of the Board of Education of the Katonah-Lewisboro Union Free School District, App. No. 19-008. One of the criteria specifically delineated for purposes of LRE analysis is that the special education program/service be 'as close as possible to the student’s home'"(Exh. VII at 24-25). I agree and I find that there was no witness to establish why an ICT classroom would not have been appropriate and why 1:1 or small group [REDACTED] instruction not larger than 3 was not appropriate.
I find the CSE team was required to conduct an adequate assessment, and "use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information"(20U.S.C. §1414[b][2][A]). It was undisputed that no evaluation supported the general education program with a period of a Resource Room program with a staffing ratio of 5:1 for 42 minutes daily (Exh. 20 at 1) and the IEP did not recommend an ICT class ratio and 1:1 [REDACTED] or [REDACTED] in a small group of 3 as recommended in [REDACTED] 's report. I find that the District was aware of the parents' request for additional testing as early as October 27, 2015 as the April 5, 2016 IEP indicated that the parents requested an IEE and specifically requested an IEE for a reading evaluation November 5, 2018 (Exh I) by the e-mail to [REDACTED].
The parents' attorney noted that the "'Reading Analysis'" that was performed on the same day that the IEP meeting was held revealed that [the student's] resource room teacher had, along with his parents, requested that a diagnostic reading assessment be conducted (Ex. 10-1). In her summary report, the District's reading specialist noted that, the District’s reading specialist noted that [the student] was only able to spell 4 out of 20 words on an ELA workshop test and that he did not show skill in 'sophisticated word reading,' pausing frequently during the reading of listed words"(Exh. VII at 4-5).
I find that the SRO held in Application of a Student with a Disability, Appeal No.12-087, that the "district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2])."
I find that the IEP team must review and consider all of the student's most recent evaluations. The District asserted that [REDACTED] 's report was conducted when the student "was in elementary school and could not, then, take into account the progress [the student] made in middle school, particularly with the benefit of Resource Room" (Exh. VIII at 11). I find the failure to consider [REDACTED] report was a denial of FAPE. I find in Application of a Student With A Disability., Appeal No.14-029, the SRO considered the failure to consider a psychological evaluation and found " the hearing record supports the parent's contention that the CSE's failure to review the results of the April 2012 psychoeducational evaluation constituted a procedural violation that rose to the level of a denial of a FAPE. For an IHO or SRO to find that the district's failure to comply with its procedural obligations under the IDEA constituted the denial of a FAPE, the procedural misstep must either have (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]). For the reasons set forth below, I find that the failure to review the April 2012 psychoeducational evaluation during the May 2012 CSE meeting or thereafter reconvene the CSE to consider the results of the evaluation significantly impeded the parent's opportunity to participate in the development of the student's IEP (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.322; 8 NYCRR 200.5[d])." I find the failure to consider [REDACTED]'s evaluation significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. I further find that the District also refused to provide the student with a specialized reading program and failed to evaluate him in all suspected areas of disability. Furthermore, I find that the program of alternating days of Direct Consultant teacher services and Resource Room teacher services in group of 5 mandated in the April 18, 2018 IEP did not meet the student's unique special education needs for 1:1 [REDACTED] or small group of 3 of [REDACTED] instruction or an ICT placement. I find that the CSE was notice of the NWEA low score of 209 on standardized testing (Exh. 21 at1;T.294). I find that the program of daily Resource Room teacher services for 42 minutes in a group of 5 mandated on the October 18, 2018 IEP did not meet the student's unique special education needs (Exh. 20) especially considering that the October 18, 2018 CSE team was on notice of the Educational Evaluation dated October 11, 2018, that indicated limited academic skills even when not penalized for spelling and punctuation (Exh. 7 at 2). I credit the parent's testimony that she told the April 18, 2018 team that the Direct Consultant teacher services and Resource Room teacher services were not specialized for his needs. I credit the parent's testimony that she felt that he could not meet the demands of the 6th grade curriculum and she requested an immediate meeting and that on October 18, 2018, the team met to develop an IEP (Exh. 20) to increase the Resource Room recommendation to 5 times per week and Consultant teacher services were removed (T.448;453). I find that the District also refused to provide the student with a specialized reading program and failed to evaluate him in all suspected areas of disability, and I find that the program of alternating days of Direct Consultant teacher services and Resource Room and then daily Resource Room in a group of 5 from the April 18, 2018 and October 18, 2018 IEPs were not specialized to meet his unique needs.
Claims concerning methodology The District asserted:
the "IDEA 'does not require a school district to maximize the potential of a handicapped child' or provide 'everything that might be thought desirable by loving parents.' See Antonaccio v. Bd. Of Educ., 281 F. Supp. 2d 710, 725-26 (S.D.N.Y. 2003) (finding student did not need 1:1 Orton-Gillingham and quoting Rowley, supra and Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563 (2d Cir. 1989)). See also Straube v. Florida Union Free Sch. Dist., 801 F. Supp. 1164, 1176 (S.D.N.Y. 1992) (the IDEA does not require “a school district to provide a specific program or employ a specific methodology in providing for the education of children with disabilities.”). (Exh. VIII at 11-12).
I find that the Second Circuit addressed the importance of considering methodology in M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217 (2d Cir. 2012). I further find as the parents' attorney asserted that per A.M v. N.Y.C. Dept. of Educ., 845 F.3d 523,544-45 (2d Cir. 2017), "there is a 'clear consensus' that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member(i.e. school psychologist) to rely on a broader approach by leaving the methodological questions to the discretion of the teacher implanting the IEP" (Exh. A at 5). It was uncontested that [REDACTED] determined that the student required an O-G based multi-sensory reading program to address his deficits (Exh. 9 at 16-17). I find the fact that the District mandated Direct Consultant Teacher service for 2 hours per week on the May 31, 2019 and mandated that these direct services be provided by an [REDACTED] based reading instruction specialist, [REDACTED], for 2 hours per week was an acknowledgement that the student required specialized reading services per [REDACTED]'s recommendation for specialized reading instruction and I credit [REDACTED] who stated that the student was able to receive the services outside of the school setting (T.84).
Claims concerning specialized reading program of [REDACTED] in the LRE The parents' attorney asserted that "IEPs must be created and implemented 'in a manner consistent with LRE principles' See Application of the Board of Education of the Katonah-Lewisboro Union Free School District, App. No. 19-008. One of the criteria specifically delineated for purposes of LRE analysis is that the special education program/service be 'as close as possible to the student’s home' see 8 NYCRR 200.1[cc], 200.4[d][4][ii][b]; 34 CFR 300.116" (Exh. VI at 24-25. I find testimony and evidence adduced at the hearing established that [REDACTED] was unable to collaborate with the student's regular education teachers (Exh. K;T.96, 142, 317;318-321) and to provide the [REDACTED] instruction to the student during regular school hours as required. The parents' attorney noted: "See Application of a Student With a Disability, App. No. 17-079, citing 34 CFR 300.116[b][3], [c] (emphasis added); see also 8 NYCRR 200.1[cc], 200.4[d][4][ii])" (Exh. VI at 25).
Claims concerning AIS/ELA workshop The District's attorney asserted that "even though the District satisfied its FAPE obligations by providing [the student] with Resource Room five (5) times a week in 2019-20, it also offered to place him in the ELA Workshop. (Tr. 84-85; P. Ex. I; D. Ex. 5)" (Exh. VIII at 16). I credit [REDACTED]'s testimony and find as the parents' attorney asserted that the ELA workshop. I find that ELA was a form of AIS and was not special education support and I find that the ELA was not adequate to meet the student's special education needs (T. 36, 38, 91-92;Exh.VII at 11).
The parents' attorney asserted that the offer of the ELA workshop was not a substitute for the obligation to provide specialized [REDACTED] reading instruction to [the student]. I agree. I find further that the record indicated that while the student attended "AIS/ELA workshop reading support every other day for 40 minutes" (Exh. 10 at 1) during the 2018-2019 school year. I find that testimony adduced at the hearing established that Dr. [REDACTED] had a very favorable view of the ELA workshop and its ability to assist the student in reading and writing; however, I find that the parent during the March 26, 2019 IEP (Exh. 19 at 1) meeting expressed concerns of the inability of the ELA workshop to provide research-based instruction to address reading fluency and comprehension (Exh. 19 at 1) and expressed concerns regarding the need for an individualized specialized reading class for the student during the May 31, 2019 IEP (Exh. 3 at 2) meeting.
I credit the testimony of the ELA workshop teacher who maintained that the recommendations outlined in the [REDACTED] Reading Evaluation (Exh. 11 at 10) could be addressed in her ELA workshop (T. 193-194), and that her classes were designed to reinforce and reteach the content classes (T.263), but that she only provided ELA workshop for the [REDACTED] (T.271). I credit her testimony that she was not trained in O-G methodology and that District did not have a specialized reading program (T.259, 268). I further find that the student was placed in the greenhouse. I credit the testimony of the [REDACTED] ELA workshop teacher who stated that she worked small groups and coordinated with the core teachers to help supplement her ELA students' weaknesses in core subjects (T.347). I further credit the testimony and find that she provided 1:1 after school tutoring during the 2017-2018 school year because the District recommended the service because the student required the instruction and that she worked on reading comprehension, fluency drills, spelling and on his homework (T.361). I further credit her testimony that she never provided 1:1 during the school day because she only provided ELA workshop during the day (T.363) and that she was aware of the recommendation for specialized reading, but in the ELA workshop there was no specific program and that she used whatever program fit the child (Id). I find that the student required 1:1 tutoring in the 2017-2018 school year and I find that his reading and writing deficits continued in the 2018-2019 school year. Accordingly, I find that the offer of the ELA workshop did not relieve the District of its obligation to provide specialized [REDACTED] reading instruction to the student. I credit the testimony of Reading teacher and find that she was not trained in [REDACTED] but received a single day of workshop (T.259). I credit the testimony of the English teacher and find that she thought that the student could achieve more if he studied more and sought help after or before school (T.287;296) but was impressed by his work (T.301). I find that there was unwavering support of ELA workshop despite the evidence of the lack of success. I find there was improvement as the student received 2 hours of 1:1 [REDACTED] and I agree with the parents' attorney who asserted there was progress after the student began to work with "a professor who is certified in [REDACTED] reading methodology (Ex -2, I-4; Tr. 473, 484, 492-494)"(Exh. VII at 8-9).
Claims concerning failure to provide specialized reading The District argued "the school need not provide such instruction to satisfy the FAPE requirement. See Antignano ex rel. R.A. v. Wantagh Union Free Sch. Dist., 2010 U.S. Dist. LEXIS 30, *38-39 (E.D.N.Y. 2010) ("Even if placement in a 1:1 supportive reading program would be best for [a student], ‘the IDEA does not require school districts to provide the best possible placement that can be imagined....") (quoting E.H. v. Bd. of Educ. of the Shenendehowa Ctr. Sch. Dist., 361 Fed. Appx. 156 (2d Cir. 2009)); Adrianne D. v. Lakeland Ctr. Sch. Dist., 686 F. Supp. 2d 361 (S.D.N.Y. 2010) (whether student might have achieved greater progress under Orton-Gillingham program is irrelevant because the IDEA does not require an IEP to provide more than a basic floor of opportunity); Grant v. Indep. Sch. Dist. No. 17, 2005 U.S. Dist. LEXIS 13073, *29 (D. Minn. 2005)" (Exh. VIII at 12).
I credit the reading progress update dated March 24, 2019, from the Reading teacher, who noted that the student was inconsistently able to answer implicit questions when focusing on the main idea of a text and making inferences; he struggled with spelling; he would benefit from a graphic organizer and would use a spelling dictionary when writing (Exh. 14). I find that the Director of [REDACTED] provided updated report on November 12, 2019 (Exh. J) and I credit her testimony and find that the student as assessed by the Gray Oral Test displayed average ability in vocabulary, and silent reading fluency and oral reading fluency were above average, so she noted that there was growth (T.411). I further credit her [REDACTED] recommendation that remained unchanged as the student continued to require explicit structured O-G based instruction to improve all areas of deficits (T.411), as Dyslexia never goes away and his fluency and comprehension broke down with complex reading material (T.418) I further credit the testimony of the Resource Room teacher and find that the District did not have a specialized reading program (T.268). I find that the lack of specialized reading instruction such as O-G was required to address student's deficits in reading and writing.
Claims concerning lack of parent participation
I credit the testimony of the parent who recalled that she participated in the April 16, 2018 IEP (Exh. 21) meeting and recalled that she requested [REDACTED] place her son in an ICT class for the middle school but was told that the student was too high functioning and that during for 5th grade that she discussed her son's progress with the Resource Room teacher and the Consultant teacher but opined that the support they provided was not specialized to his needs (T.447). I credit the testimony of the parent who stated that her son was aware of his inadequacy and that to write an assignment each Wednesday that required him to produce a paragraph with correct spelling, and punctuation resulted in meltdowns (T.433) and that he would say [REDACTED] (503). The parents maintained that the IEP did not provide sufficient supports and strategies to address the student's distraction as noted on the IEP (Exh. 3 at 1). I find that as the parents' asserted that the District refused to consider the request for specialized reading instruction such as [REDACTED]. (Exh. VII at 5). I credit the testimony of [REDACTED] who acknowledged that she and the CSE were aware that Dr. [REDACTED]'s recommended [REDACTED] a specialized reading program for the student and that he recommended an ICT class as the LRE for the student, and that the Resource Room program was increased to daily services to address reading deficits (T.77), and that although the parents requested a specialized reading instruction program as recommended by [REDACTED], she maintained that the CSE was unable to take all the recommendations in a single IEP (T.80). I further credit [REDACTED] 's testimony that the reading assessment (Exh. 10) was discussed and that misspellings and reversals were noted. I find that [REDACTED] opined that reading comprehension did improve with AT (T.77;81); however, I find that the refusal to consider the request for specialized reading instruction such as [REDACTED] or to place [REDACTED] instruction on the IEP denied the parents a meaningful opportunity to participate.
Claims concerning present levels of performance The parents' attorney asserted that the program offered was insufficient and the IEP was inadequate regarding the present levels of performance. (Exh. VII at 29). I find that the October 18, 2018 IEP indicated that the student adjusted well to middle school and was an active participant in class and was able to self-advocate and seek out teachers for help and was diagnosed with AHDH and involved in sports outside of school (Exh. 20 at 7) and yet needed special education be successful in the general education class as the student had "a significant delay in reading comprehension, written expression" which inhibited progress (Id.). I find that the comment section indicated that the student was able to self-advocate was inconsistent with the April 26, 2017 IEP that indicated that the student did not seek out special education services of Direct Consultation or Resource Room (Exh. 22 at 1). I further find that there was inconsistent testimony as to when the student sought out help (T.107). The parents' attorney asserted that the October 18, 2018 IEP failed to mention the diagnosis of a Specific Learning Disorder, Dysgraphia, ADHD and Dyslexia (Exh. A at 12). I find that the IEP indicated the evaluative data in terms of the W-J, WISC-V, CELF-5, DAS-2 and WIAT-III scores, but did not mention specific diagnoses. I further find that the student's severe deficits in reading and writing were not addressed in the present levels of performance
Claims concerning inappropriate goals The parents objected to the goals on October 18, 2018 IEP as the goals failed to address every area of the student's deficits (Exh. A at 12). I find that 2 study skills goals and 4 reading goals and 4 writing goals were specific but did not contain baseline functioning and did not address the errors in writing and spelling and punctuation noted in the Educational evaluation (Exh. 7 at 2). I find that the goals to correctly spell 10 words and to write up to 5 paragraphs (Exh. 20 at 9) did not address the specific diagnosis of Dyslexia and Dysgraphia. I find that the student required more than a single goal to address spelling and I find that there was no goal to assist the student to physically write and the IEP failed to include a focusing goal and I find that as the parents' attorney noted there was no specific reading protocol or program designated on the IEP (Exh. VII at 21). The parents' attorney further asserted that the IEP were vague, and that the student's IEP did not meet his individual needs and [REDACTED] the appropriateness of the IEP annual goals and lack of short-term instructional objectives (Exh. A at 12). I find that an IEP must contain measurable annual goals which will "enable the student to be involved and progress in the general education curriculum." 8 NYCRR §200.4(d) (2)(iii)(a)(l); 20 USC § 1414(d)(1)(A). Though, an IEP need not be calculated to maximize a student’s potential; rather, the document must engage in "personalized instruction and support services to permit the child to benefit from that instruction." Evans, 930 F. Supp. at 98 (quoting Rowley, 458 U.S. at 203). Likewise, under 8 NYCRR §200.4(d)(2)(iii)(a), an IEP must comprise of goals and objectives personalized and tailored to the unique disability needs of the student in question. I do not find the goals were personalized and tailored to the student's unique needs.
Based on the foregoing, I find that the District failed to demonstrate that the student’s IEP and program were appropriate for the 2018-2019 school year.
(2019-2020)
Claims concerning the failure to recommend an education program reasonably calculated to confer a benefit The District asserted that the IEP must be "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, 1001 (2017). An IEP must be reasonable, not ideal. Id. at 999. "For a child fully integrated in the regular classroom, an IEP typically should be 'reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.'" Id. (citing Rowley, 458 U.S. at 204)"(Exh. VIII at 8).
The parents' attorney asserted that "the District finally (and belatedly) recognized the need for [the student] to have a specialized [REDACTED] based reading program, as recommended by both [REDACTED] and the [REDACTED] reading evaluation, which the District authorized" (Exh. VII at 22-23). The parents' attorney argued that while the "District did not provide specialized reading instruction at school, as part of [the student's] school day, and placed the responsibility on the parent to arrange, implement and transport [the student] for these necessary special education services" (Id.). I agree.
I credit the parent's testimony and find that she informed the May 2019 IEP team that the direct services must be provided in school and that her son spent 3 hours each night to complete homework during the 2018-2019 school year (T.485). Moreover, I find that that the District provided no witness to explain that while offering Direct Consultant Teacher services of [REDACTED] specialized reading instruction by [REDACTED] over the summer of 2019 as compensatory services to the student, yet only offering these services after school was "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Moreover, I do not find that the mandate to provide 2 hours of 1:1 Direct Consultant Teacher services was merely to appease the parent's request at March 26, 2019 IEP meeting but was to address the documented deficits. I credit [REDACTED]'s testimony who recalled that she chaired the meeting and that the team reviewed the AT evaluation (Exh. 16) as well as the reading assessment (Exh. 10) and that Direct Consultant Teacher services were offered after school in an attempt to work with the parents (T.83). I further credit the testimony of [REDACTED] who maintained that ELA workshop would provide the reading support that the student needed during the school day, and that ELA workshop was offered to the parents but after school reading services were offered (T.84). I credit [REDACTED]'s testimony that per the March 26, 2019 IEP that the student received extended school day instruction and would receive summer services (T.99), and I find that this service was compensatory for the failure to provide the recommended 1:1 [REDACTED] specialized reading or in a group of 3 or an ICT class recommended by [REDACTED] so that the student could receive special education services to address his Dyslexia and Dysgraphia and AHDD.
I credit the testimony of the parent and the Director of [REDACTED] who requested specialized reading instruction and requested compensatory reading services over the summer because her son had missed so much time but was told again that only ELA workshop was available over the summer (T.478). The parents' attorney asserted that per the "report dated May 9, 2019, [REDACTED], who was selected as a reading specialist by the District (Tr. 80-82), emphasized, in all capital letters, that 'A MULTI-SENSORY APPROACH TO LANGUAGE LEARNING IS ESSENTIAL FOR [the student] TO ADDRESS THE DIFFICULTIES HE IS EXPERIENCING WITH DECODING AND ENCODING' (Ex. 15-3) (Exh. VII at 9). I find that the District should have acquired an [REDACTED] trained instructor to provide the [REDACTED] instruction recommended by [REDACTED], the [REDACTED] reports and [REDACTED] during the school day.
Claims concerning lack of parent participation
I credit the testimony of the parent and find that [REDACTED] used a strict [REDACTED] program and that [REDACTED] told her that her son did not know what a noun was (T.493). I credit her testimony and find that [REDACTED] told her that her son was struggling emotionally working with her from May 2019 to January 2020, and that [REDACTED] was not able to provide support during the school day (T.499). I find that the CSE ignored the parent's request for [REDACTED] instructions at the May 31, 2019 IEP. I find that the CSE ignored the parent's expressed concerns regarding the slow progress of reading and writing. The SRO found in Application of a Student with a Disability, Appeal No.12-087 that "school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation."]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006])." I credit the parent's testimony that she requested O-G instruction during the school day at the May 31, 2019 IEP (Exh. 3) and at the September 19, 2019 IEP (Exh. 5) meeting but was told that only ELA workshop was available (Id.). I find the refusal to consider the request for specialized reading instruction such as [REDACTED] or to place [REDACTED] instruction on the IEP denied the parents a meaningful opportunity to participate.
Claims concerning present levels of performance The parents' attorney asserted that the May 31, 2019 IEP's description of the student who "performs well on certain reading tasks when objective testing belies this conclusion (Ex. 3-4). It reports that written expression is an area of strength (Id.) even though the record is replete with evidence (Ex. H) and testimony from [the student's] own teachers (Tr. 111, 163, 323, 328, 335, 342)" (Exh. VII at 29). I agree.
Moreover, I find the May 2019 AT evaluation revealed that the student he struggled in written expression, spelling, reading comprehension and math calculation (Exh. 16 at 1) and had a significant delay in reading comprehension, written expression, attention which inhibited progress in general education (Id.) and answered 5 out of 12 (42%) of the questions correctly when reading to himself; he answered 8 out of 12 (67%) of the questions correctly when reading aloud and when read to by an adult; he answered 10 out of 12 (83%) of the questions correctly when he used Text-to-Speech Software (Exh. 16 at 6). I credit the finding in the AT evaluation that while the 2018-2019 IEP indicated that writing was an area of strength; however, spelling, putting his thoughts on paper, writing a paragraph or essay about a specific topic were areas of [REDACTED] for the student (Exh. 16 at 7). The evaluator found that the student spelled [REDACTED] for Tuesday and did not use capital for days and spelled [REDACTED] for August and [REDACTED] for December and [REDACTED] for thirteen and [REDACTED] for thirty (Exh. 16 at 8).
I further find the record was replete with the unsuccessful attempts of technology to provide spelling supports and technology as the student had difficulty with typing and answering questions at the same time using voice-to-text (Exhs. 3 at 1,13 at 1,16 at 13, 19 at 1), yet I find the May 31, 2019 IEP recommended 25 hours of AT during school and at home (Exh. 3 at 9).
I further find that the record was replete with the student's difficulty with handwriting (T.329,335,392,406). I find the record was silent as to which teacher was responsible to address the student's needs to improve his handwriting (Exhs. H at 6-13; G at 8; 15 at 3). I find there was no testimony from the testimony of the Resource Room teacher to establish how improve written expression skills (Exh. 3 at 6). I further credit the testimony and find that the student was resistant to work on [REDACTED] subjects such as spelling and then wanted to work on math homework (T.107), and that his educational needs manifested in [REDACTED] issues such as planning to write, copying incorrectly information from the board, organizing his thoughts and expressing his thoughts (T.112). I further credit her testimony that the student required Resource Room services to address EF and to address writing deficits. I credit the testimony of the Resource Room teacher who noted that the student did not require 1:1 [REDACTED] instruction because he did not have an intense level of deficit in reading and that he was making progress in reading (T.116). I further find that the CSE was aware of Dr. [REDACTED]recommendation on her May 9, 2019 evaluation of the student who needed to "develop the pre-writing steps" as he was "very resistant to do because he does not like to write and take the time to edit and revise" (Exh. 15 at 3). I do not find the Resource Room teacher was able to address the student's EF issues, or his reading or writing issues in the class of 5. I further find the specialized reading instruction by [REDACTED] was required to meet the student's unique needs.
Claims concerning insufficient evaluations and inappropriate and insufficient IEP The parents' attorney asserted that the 2019-2020 IEP was developed with inadequate assessments and inadequate description of present levels of performance (Exh. VII at 29). I agree. I find that the IEP team must review and consider all of the student's most recent evaluations and I further find that the parent concerns of the student's ability to process information as well as seeing, hearing and writing information and were noted on the IEP (Exh. 3 at 7). I find that the District provided a brief reading summary (Exh. 10) and the [REDACTED] data, but I find that the May 31, 2019 IEP failed to contain the recommendations from [REDACTED] and the [REDACTED] reports (Exhs. E;G) and failed to include the recommendations from [REDACTED] (Exh. 15 at 3).
The parents' attorney argued that the May 31, 2019 IEP indicated that the student "performs well on certain reading tasks when objective testing belies this conclusion (Ex. 3-4). It reports that written expression is an area of strength (Id.) even though the record is replete with evidence (Ex. H) and testimony from [the student's]’s own teachers (Tr. 111, 163, 323, 328, 335, 342)" (Exh. VII at 29). I agree.
Claims concerning inappropriate goals The parents' attorney asserted that the 2019-2020 IEP reading goals contained "certain strategies (underlining, stop and jot, requiring two pieces of text evidence to support an idea (Ex. 3-6), these are simply strategies, not goals and do not address the underlying difficulties that have resulted in clinical reading scores that are as low as the 9th percentile in broad reading; 11th percentile in passage comprehension; 9th percentile in coding; 16th percentile in matrix reasoning; 18th percentile in verbal comprehension (Ex. 3-2) as well as the other serious reading deficits identified in [REDACTED]’s evaluation and in the [REDACTED] " (Id.) I agree and I find that goals were not individualized to meet the student's unique needs.
Based on the foregoing, I find that the District failed to demonstrate that the student’s IEP and program were appropriate for the 2019-2020 school year.
Compensatory services For the failure to provide the student with a FAPE for the 2018-2019 and 2019-2020 school year, I find entitling him to compensatory education services) See The student. v. N.Y.C. Dep’t of Educ., No. 07-CV-2316, 2008 WL 4890440 at *24 (E.D.N.Y. Oct. 30, 2008) (citing Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 109, n. 2 (2d Cir. 2008) ("Compensatory education is 'prospective equitable relief' that requires a school district to fund education 'as a remedy for any earlier deprivations in the child’s education'."); see also, e.g., Reid v. Dist. of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005) ("Under the theory of compensatory education, courts and hearing officers may award educational services... to be provided prospectively to compensate for a past deficient program.") (citations omitted).
The parents' attorney requested a bank of 72 hours of compensatory specialized [REDACTED] -based reading services be provided in connection with the District’s failure to appropriately address [the student's] special education reading needs during the 2018-2019 school year. The parents' attorney calculated that the District was "required to provide three periods per week (for a total of 120 minutes) of specialized [REDACTED] based reading services to [the student] at school, during regular school hours, retroactive to the beginning of the 2019-2020 school year and continuing until the end of such school year " (Exh. VI at 29). I find that the student was entitled to 5 sessions per week for 1 hour per session of 1:1 [REDACTED] instruction by a reading specialist trained in [REDACTED] for a total bank of 200 hours to be implemented during the school year 2019-2020 school year to place the student in the position he would have been in had the district complied with its obligations under the IDEA.
IEE
The parents' attorney argued that "the District only paid $400-$450 of the $2000 that the parents were required to expend for the independent reading evaluation (Tr. 522-523), therefore, the parents seek the balance of the out-of-pocket expenses they incurred.... The District agreed to the need for an IEE and never alleged that the IEE was unnecessary or that it did not meet school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][v]. Accordingly, full reimbursement is warranted. See 8 NYCRR 200.5[j][3][[viii]; 8 NYCRR 200.5[g][2])" (Exh. VI at 23). I agree. I further find that the SRO held in 14-028 that if a District, "determines that it does not require further evaluative data after obtaining parental consent, it must comply with procedures requiring that it notify the student's parents of that determination, its reasons for making the determination, and the parent's right to request additional assessments (34 CFR 300.305[d][1]; 300.503; 8 NYCRR 200.4[b][5][iv]; 200.5[a][6][i])." I find that the District agreed to provide a comprehensive reading evaluation provided by [REDACTED] (Exh. 11), but only agreed to the reimburse $450 by the e-mail dated March 11, 2019 (Exh. 13 at 1) from [REDACTED] to the parent. I credit the parent's testimony and find that she wrote to [REDACTED] on November 5, 2018 (Exh. I) to request an independent evaluation (T.468). I credit her testimony and find that she recalled that the team agreed to provide an independent evaluation by [REDACTED], and that she was unable to receive a quick response, so she contacted [REDACTED] to arrange for another evaluation (T.469). I further find that the [REDACTED] recommendation for [REDACTED] methodology instruction (Exh11 at 10) was used by the District in the development of the May 31, 2019 IEP's mandate for 2 hours of Direct Consultant teacher services per week provided by [REDACTED] and I find that the equities favor the parents' position. Accordingly, I find the parents are entitled to reimbursement for the outstanding $1,600.
Order
Therefore, it is hereby ordered that the District fund 5 sessions per week for 1 hour per session of 1:1 [REDACTED] instruction by a reading specialist trained in [REDACTED] for a total bank of 200 hours to be implemented in school during the school year and reimburse the parents for the January 21, 2019 reading evaluation in the amount of $1,600. This order is in effect until the conclusion of the 2020-2021 school year for the deprivation of FAPE for the 2018-2019 and 2019-2020 school years.
Dated: March 11, 2020
Corrected: March 13, 2020 _____________________________
LINDA AGOSTON, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The Parents and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 26, 2019
1 2018-2019 Final Report Card, 1p. District
2 2018-2019 Progress Report with cover letter, 5 pp. District
3 IEP dated 5/31/19, 12 pp. District
4 Prior written notice, 5/31/19, 2 pp. District
5 IEP, 9/19/19, 12 pp. District
6 Prior Written Notice, 9/19/19, 2 pp. District
7 Educational Evaluation by [REDACTED], 10/11/18 17, 6 pp. District
8 Psychological Evaluation by [REDACTED], 9/28/18, 7 pp. District
9 Neuropsychological Evaluation by [REDACTED], 2/12/16, 30 pp. District
10 Summary of Diagnostic Reading Analysis by [REDACTED],
10/19/18, 22 pp. District
11 [REDACTED] Reading Evaluation, 1/21/19, 14 pp. District
12 Classroom observation, 3/19/19, 2 pp. District
13 E-mail from [REDACTED] to [REDACTED], 3/21/19, 2 pp. District
14 Reading Progress Update from [REDACTED], 3/23/19, 1 p. District
15 Diagnostic Evaluation from [REDACTED], 5/9/19, 9 pp. District
16 Educational and Assistive Technology Evaluation, 5/29/19, 9 pp. District 17 First quarter report card 2019-2020 school year, 1 p. District
18 First quarter progress report 2019-2020 school year, 5 pp. District
19 IEP, 3/26/19, 10 pp. District
20 IEP, 10/18/19, 12 District
21 IEP, 4/18/18, 9 pp. District
22 IEP 4/26/17, 10 pp. District
23 IEP, 6/21/16, 9 pp. District
24 IEP, 4/5/16, 10 pp. District
A Impartial Hearing Request, 7/18/19, 16 pp. Parents
B Progress Note, September-November 2019, 1 p. Parents
C Student Progress Report, Fall 2019-2010, 2 pp. Parents
D Quiz, 10/29/19, 2 pp. Parents
E Educational Evaluation, 10/22/18, 2 pp. Parents
F Quarter 1 Report Card, 11/14/19, 1 p. Parents
G Reading Evaluation, 1/12/19, 14 pp. Parents
H Student's Work Samples, various dates, 14 pp. Parents
I Correspondence with [REDACTED], various dates, 4 pp. Parents
J [REDACTED] evaluation, 11/12/19, 5 pp. Parents
K Letter from Dr. [REDACTED], 9/29/19, 1 p. Parents
I Appointment Letter, 7/22/19, 1 p. IHO
II Decision on Extension, 10/8/19, 1 p. IHO
III Decision on Extension, 11/1/19, 1 p. IHO
IV Decision on Extension,11/26/19, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 7, 2020
V Decision on Extension,12/31/19, 1 p. IHO
VI Decision on Extension, 1/7/20, 1 p. IHO
Post Hearing Submissions
VII Parent's Closing Statement, 2/25/20, 30 pp. IHO
VIII District's Memoranda of Law, 2/25/20, 34 pp. IHO
IX Decision on Extension, 2/14/20, 1p. IHO