Impartial Hearing Decision

In the Matter of the Due Process Hearing Between The Parent of REDACTED And

CENTRAL SCHOOL DISTRICT NYSED Case #530322

Pursuant to the Provisions of Article 89 of the Education Law of the State of New York

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

Avenue

NY

APPEARANCES:

REDACTED, LLP

Attorneys for District

REDACTED, New York

REDACTED, ESQ. Of Counsel

REDACTED, PLLC

Attorneys for Parent

REDACTED, New York

REDACTED, ESQ, Of Counsel

*DECISION

JURISDICTION

This proceeding was commenced by the Parent of REDACTED, a student residing within the territorial jurisdiction of the REDACTED Central School District and a student previously determined to be a student with a disability, (hereinafter referred to as “Student”), by the filing by her then-attorneys, REDACTED REDACTED, LLP, on September 16, 2019, of a Due Process Complaint Notice, dated September 16, 2019.

In accordance with the Regulations of the Commissioner of Education of the State of New York, the undersigned was appointed as the Impartial Hearing Officer authorized to preside over the above-captioned proceeding on September 18, 2019.. Thereafter, Parent, again by her then-attorneys, REDACTED REDACTED, LLP, filed, on September 18, 2010, another Due Process Complaint Notice, dated September 18, 2019, with District, entitled “REDACTED” District, by its Counsel

REDACTED, Esq., advised, on September 18, 2019, that District would treat such second filing as an Amended Due Process Complaint Notice, and accepted it on that date. Thus, such Due Process Complaint Notice, dated September 18, 2019, has superseded Parent’s original filing and constitutes the only Due Process Complaint before me in this proceeding. While neither party submitted Parent’s September 18, 2019 Due Process Complaint as a separate exhibit, it was included in District’s Motion to Dismiss (District’s Exhibit 1). I have marked such Due Process Complaint as a separate exhibit (IHO Exhibit II).

An initial Pre-Hearing Conference was conducted on October 25, 2019. Thereafter, another Pre-Hearing Conference was conducted on November 5, 2019, at which was established a schedule of seven Hearing Dates, commencing on December 11, 2019.

However, District Counsel, prior to the fist scheduled Hearing Date, thereafter filed a Motion for Partial Dismissal of Parent’s Complaint (District Exhibit 1) and requested the cancellation of the first four scheduled Hearing Dates so that its Motion might be heard and determined. The date of December 11, 2019 was cancelled, but a hearing was conducted on December 12, 2019 to hear and determine District’s Motion.

Parent’s Amended Complaint (I.H.O. Exhibit I) (hereinafter referred to as “Parent’s Due Process Complaint” or “Parent’s Complaint”) alleged, inter ala, that District had failed to offer Student a Free, Appropriate Public Education (FAPE) during the 2016-2017; 2017-2018; 2018-2019; and 2019-2020 school years. District brought its Motion for Partial Dismissal of Parent’s Complaint, seeking to have dismissed Parent’s challenge to the appropriateness of District’s program for the 2016-2017 school year on the basis that such was beyond the applicable Two-Year Statute of Limitations (20 U.S.C §1415[f][3]C]; 8 NYCRR 200.5(j)(i)). As previously noted, the first day of hearing – December 12, 2019 - was established to hear and determine District’s Motion. However, after initial discussion, I determined it necessary to conduct an evidentiary hearing in order to fully determine such Motion and, further, that it was appropriate to proceed to the receipt of testimony on the other issues raised by Parent in her Due Process Complaint, while affording to both parties the opportunity to brief the issues raised in such Motion. After extensive briefing, the date of February 4, 2020 was established to receive such testimony on the issue raised by District in its Motion to Dismiss. However, at the commencement of proceedings on that date, Parent’s counsel advised that Parent would withdraw all matters setout in her Complaint that were beyond the applicable Statute – i.e., withdrawing all allegations involving the 2016- 2017 school year.

Thus, the issues remaining for consideration are Parent’s contention that that District had failed to offer Student a Free, Appropriate Public Education (FAPE) during the 2017-2018; 2018-2019; and 2019-2020 school years, as well as failing to provide Student with an Independent Educational Evaluation; and failing to provide Student with meaningful evaluation in all suspected areas. Parent’s Complaint further sought reimbursement for a private educational consultant and compensatory education for Student. While not set out specifically as an “issue”, but what appeared to be the most critical matter for determination, was Parent’s request that Student be placed with another school district or that District be required to pay for a private educational placement of Parent’s choosing. Thereafter followed specific allegations regarding claimed failures of District to appropriately address Student’s specific needs in a myriad of ways, which will be addressed herein.

THE HEARING

Hearings were held in the above referenced proceeding at the District Offices on the following dates:

December 12, 2019

December 16, 2019

January 6, 2020

January 7, 2020

February 4, 2020

February 19, 2020

March 6, 2020 The parties were advised, prior to the commencement of the receipt of testimony, that each would have the right to call witnesses on their behalf, to cross-examine witnesses called by the other party and to offer exhibits into evidence. The parties were further advised that nothing except the sworn testimony of the witnesses appearing in this Proceeding and the contents of the exhibits received into evidence would be considered in my determination of this matter.

In accordance with the provisions of New York State Education Law §4404(1)(c) the burden of persuasion and the burden of proof rested with District.

The District, in submitting its case-in-chief, presented the testimony of six (6) witnesses. They were:

REDACTED Director of Special Programs for District REDACTED Assistant Principal at REDACTED High School REDACTED A Special Education Teacher at [redacted]

[redacted] High School – Was Student’s [redacted] Teacher during the 2018-2019 and 2019-2020 school years – Also was Student’s Case Manager for such years

REDACTED A Special Education Teacher a[redacted] High School – Was Student’s [redacted]Teacher during the 2018-2019 school year REDACTED A School Social Worker at REDACTED High School

\ REDACTED A Special Education Teacher at District’s

[redacteSchool – Was Student’s [redacted] Teacher during the 2017- 2018 school year

` In addition to the testimony of the above witnesses, District offered fifty-three

(53) exhibits into evidence, all of which were received and considered.

Parent submitted the testimony of ten (10) witnesses. They were:

REDACTED A School Guidance Counsellor at [redacted] High School – was student’s Guidance Counsellor during the 2018-2019 and 2019-2020 school years

REDACTED A School Psychologist for District – Chaired a Committee on Special Education Annual Review Meeting which developed Student’s I.E.P. for the 2019-2020 school year

REDACTED Director of Special Programs for District –

Chaired Student’s Manifestation Determination Review Meeting

REDACTED Assistant Head of School/Principal at [redacted]

School

REDACTED Student

REDACTED, M.D. Director of The [redacted] Brain and

Education

REDACTED A Teacher of the Speech and Hearing

Handicapped at, among others, [redacted] High School – Provided Speech/Language Services to Student during the 2018-2019 school year

REDACTED Parent

REDACTED Head of School – REDACTED School REDACTED Senior Clinical Therapist – REDACTED

[redacted]– Provided Therapy Services to Student beginning in May of 2019 In addition to the testimony of the above witnesses, Parent offered nineteen (19) exhibits into evidence, all of which were received. District also offered two exhibits into evidence as part of its cross-examination of a Parent witness, which were received in evidence.

District, in Rebuttal, offered the testimony of one (1) witness. He was REDACTED Supervisor of REDACTED for District In addition to the testimony of such Rebuttal witness, District offered one (1) additional exhibit into evidence, which was received and considered.

At the close of proceedings, both parties requested the opportunity to submit Post-Hearing briefs, which requests were granted as long as such were submitted no later than the Close of Business on May 1, 2020. Each party timely submitted a Closing Brief and each has been read and considered. The Actual Record Close Date was May 4, 2020.

THE STUDENT

Student is currently REDACTED, having been born on REDACTED. Student resides in the District with his mother and REDACTED who also attend classes within the District – one older and one younger, and both found to be in need of special education services. Student initially had been determined to be in need of special education services when he was in District’s Second Grade and was classified with a Speech/Language Impairment and provided with Resource Room, Consultant Teacher Services and Speech/Language Therapy. However, as noted in a Confidential Psychological Report, dated January 3, 2018 (District Exhibit 16), Student continued to struggle academically, and the following year, Student’s classification was changed to Learning Disability and his placement to a 15:1+1 Self-Contained Class.

In a Psychological Report conducted in February of 2015, when Student was in the Fifth Grade at District’s [redacted] Elementary, it was noted that Student performed in the Average Range intellectually when assessed using the Woodcock-Johnson Test of Cognitive Abilities - Third Education (WJ-III -Brief) (District Exhibit 19). Indeed, Student performed in the Average Range in all tested areas, including his Social- Emotional Functioning – at least as assessed by his classroom teacher, based upon her completion of the BASC – II (Behavior Assessment System for Children – Second Edition) – Teacher version. However, such Report noted that on the same BASC-II Assessment – Parent version, Student’s behaviors were stated to be in the Clinically Significant Range for hyperactivity, aggression, externalizing problems, anxiety, depression, internalizing problems, atypicality, withdrawal, attention problems, difficulties activities of daily living, difficulties with functional communication, difficulties with adaptive skills, placing Student’s behaviors in the “at risk” range for social skills difficulties.

Student thereafter attended District’s [redacted] School, where Student was placed, for Sixth Grade, in a Consultant Teacher Direct program except for English Language Arts (ELA), which was delivered in a self-contained classroom. According to the Confidential Psychological Report of January 3, 2018 (District’s Exhibit 16), when Student was in the [redacted] Grade, it was noted that Student struggled with basic academic concepts, with updated academic testing revealing deficits in decoding; reading comprehension; and math skills. Student’s placement returned to full time 15:1+1 class for his [redacted] and Eighth [redacted] programs. Testing REDACTED that time, through the use of the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V), disclosed that Student performed in all areas in the Low Average Range and a Full-Scale IQ of 76. The Report noted that, although Student appeared to be making his best effort, his scores were significantly lower that his prior evaluations and cautioned that such score might present with an underestimation of Student’s ability level.

DISCUSSION

As noted, Parent complains of the District’s failure to provide Student with a free, appropriate public education (FAPE). It has been stated that a FAPE is offered to a student when (a) a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through those procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]). However, such statement is no longer exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors will render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent' 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y.

Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

It has also been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04- 046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).17 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. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v.

Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v.

Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch.

Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15).

The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs.

B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). Most recently, the United States Supreme Court, in deciding Endrew F. v. Douglas City Sch. Dist. 137 S.Ct. 1001; 197 L.Ed2d 335 (2017), held that the Individuals with Disabilities Act (IDEA) “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

ISSUE ONE

DID DISTRICT AFFORD STUDENT A FREE, APPROPRIATE PUBLIC

EDUCATION DURING THE 2017-2018 SCHOOL YEAR

District’s Committee on Special Education (C.S.E.) had convened on February REDACTED to prepare Student’s Individualized Education Program (I.E.P.) for the 2017-2018 school year. At such time, Student was still attending REDACTED at the REDACTED School. The meeting was chaired by School and was attended by Special Education Teacher; General Education Teacher REDACTED; Guidance Counsellor REDACTED; and Speech Therapist REDACTED. The Committee noted that Student was having a ‘challenging year”, barely passing, with scores in the high 60’s for core classes. It noted that Student did minimal work required and was often work-avoidant. It was further noted that Student had become very social with his peers and sought attention from them by talking back to his teachers and refusing to complete homework assignments. The Committee noted that Student’s STAR Reading was at a 3.0 grade level and his STAR Math at a 3.2 grade level.

The Committee determined that for the 2017-2018 school year, Student continue in a Special Class (15:1+1) for all core subjects and Speech/Language Therapy forty-five times yearly, forty minutes per session, in a group of five. The I.E.P also contained a number of Annual Goals: one in Study Skills; two in Reading; three in Writing (although it had found that Student’s strength is in his writing); three in Math (where Student struggled); two in Speaking/Listening; and three in Speech/Language.

The Committee also noted that Parent had not attended the meeting and could not be reached by phone. However, the I.E.P states that Parent was contacted after the meeting to review outcome and was in agreement with all recommendations.

The I.E.P. was later amended on October 2, 2017 (District Exhibit 7) to exempt Student from a foreign language requirement and to add a Special Class Reading, forty minutes daily.

Student’s [redacted] Grade Special Education Teacher [redacted] testified that she taught all core subjects during the 2017-2018 school year, as well as serving as Student’s Case Manager (T.R 442) While designated as a 15:1+1 class, Witness REDACTED stated that the class had but nine students for ELA and Math and less for Science and Social Studies (T.R.444). Witness REDACTED expressed the belief that Student made significant growth in Reading Comprehension (T.R. 459), as well as in Math (T.R.461, by comparing Student’s STAR scores.

It developed that, while none of Student’s I.E.P.’s ever noted that Student had been diagnosed as having Attention Deficiency Hyperactivity Disorder (ADHD), Student’s yearly Health Reports filed yearly with District did, beginning in 2014, when Student was in Fifth Grade, in fact, contain a “Problem Description” section that noted “ADHD - Attention deficit disorder with hyperactivity”, with an “Onset Date” of 9-23-14 and “Chronic – N”. Immediately adjacent was the notation “Learning Disability” with an

Onset Date of 3-26-2014 and “Chronic” -Y”. I interpret “Chronic -N” to mean that such was not chronic and that “Chronic – Y” to mean that such was chronic.

Witness REDACTED briefly testified that Student at times was inattentive in class and in need of redirection. However, Witness REDACTED attributed such distraction to Student’s interaction with other students – and particularly with one to REDACTED her student - (T.R.444-445), but was easily redirected.

Witness REDACTED was a Special Education Teacher for twenty-nine years and was familiar with students who had been diagnosed with ADHD. She testified that she saw none of the elements of ADHD in Student’s behavior or attentiveness.

Witness REDACTED was also carefully examined regarding the appropriateness of certain Annual Goals in Student’s I.E.P. (Exhibits 6 and 7), specifically Student’s Reading Goals, which in part read:

“When presented with narrative and/or informational text from [Student’s] content area subjects on the [redacted] Grade level, [Student] will…”

Witness REDACTED indicated that she was aware of Student’s Reading level and would not expect Student to be able to read on an [redacted] Grade level. Rather, [redacted] Garde material would be appropriately modified.

I recognize that both Federal enactments, the Individuals with Disabilities Education Act (20 U.S.C. §1412 et seq) and the Regulations enacted thereunder (34 C.F.R. §300 et seq), as well as the Regulations of the Commissioner of Education of the State of New York (8 NYCRR 200) contain mandates regarding the completeness of the information placed in a student’s I.E.P., and the obligation for appropriate Annual Goals to be placed therein. It is my finding and determination that the failure to provide such elements are procedural violations. As stated in both Federal and State Regulations:

…an impartial hearing officer may find that a student did not receive a free, appropriate public education only if the procedural inadequacies impeded a student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free, appropriate public education to the parent’s child, or caused a deprivation of educational benefits:

8 NYCRR 200.5((j)(4)(ii))

I am satisfied that Special Education REDACTED was of such ability and experience that neither the omission of any reference in Student’s I.E.P. that Student had been diagnosed with ADHD nor the impreciseness of some of Student’s Annual Goals, detracted from the educational program Student received during the 2017-2018 school year.

It is my finding that District performed all necessary evaluations to ensure Student received a Proper program. I specifically find that it was unnecessary for District to conduct a Functional Behavioral Assessment to determine Student’s displayed inattention and distraction in class, as the basis for such was clear to his teachers.

After a review of all of the elements of Student’s program as afforded by District during the 2017-2018 school year, it is my finding and determination that Student was provided with a Free, Appropriate Public Education during the 2017-2018 school year.

ISSUE TWO

DID DISTRICT AFFORD TO STUDENT A FREE, APPROPRIATE

PUBLIC EDUCATION DURING THE 2018-2019 SCHOOL YEAR?

District’s Committee on Special Education (C.S.E.) convened on February 6, 2018 to conduct an Annual Review and prepare Student’s Individualized Education Program (I.E.P.) for the 2018-2019 school year. At such time, Student was still attending REDACTED Grade at the REDACTED Middle School. The meeting was chaired by School Psychologist REDACTED and was attended by Special Education Teacher REDACTED; General Education REDACTED; Guidance Counsellor REDACTED; and Speech Therapist REDACTED. Also, both Student and Parent participated by phone conference. The Committee noted reviewed the results of the recently-completed Confidential Psychological Re-evaluation. The Committee noted that, while Student had shown expected growth in reading and math skills, Student demonstrated weaknesses in math calculations and fluency, and continued to have difficulty with reading in the classroom. It was also noted that, in light of the growth Student had demonstrated, consideration might be given to include Student in some ICT classes However, it was reported that, while Parent was in support of such placement, Student was very resistant to such, but might consider it at his next year’s Annual Review. The Committee also note that, with effort, Student maintained grades in the 70’s (Exhibit 8). The Committee determined that for the 2018-2019 school year, Student continue in a Special Class (15:1+1) for all core subjects, it continued Student’s Reading Class, and Speech/Language Therapy forty-five times yearly, forty minutes per session, in a group of five. Student’s placement was at the District’s High School. The I.E.P. notes that Parent was in agreement with the recommendation.

Student’s [redacted] Grade at the [redacted] School, the 2018-2019 school year, started as Student’s [redacted] Grade at the Middle School had, that is, with Student starting out very focused and positive, but deteriorating as the school year progressed.

According to Witness REDACTED, who was Student’s Special Education Global Studies Teacher and Case Manager, she saw Student during seventh period, when Student often appeared tired and would sleep in class. Witness REDACTED stated that Student was a leader amongst his peers in class, appeared very confident and very social. She was unaware that Student had been diagnosed with ADHD, but, except for appearing tired, displayed no other elements associated with ADHD (T.R.275-276). Student did, however, need to be redirected when he was on his phone, and that, as the school year progressed, Student became more often distracted by the use of his phone or by other students, which prevented him from understanding the matter being taught (T.R.296).

Such distractions became more of an issue as the school year progressed. Although Student never shared the source of such distractions, Witness REDACTED stated that she was observant in the hallways and in the cafeteria, of her students and that students reported of social issues involving Student. According to the testimony of Witness REDACTED, Student’s distractibility in the classroom and a noted concomitant drop off in his work completion were attributable to social issues that were occurring not in her classroom, but to social issues that were happening in Student’s world, both in and outside of school (T.R.321).

Witness REDACTED testified that she was Student’s REDACTED Teacher during Student’s REDACTED Grade. Witness REDACTED reported that Student did very well when in class, was very well liked by his peers in her class, and was a good student, but was distracted by his phone (T.R.346-347). It was noted that Student’s attendance was good as the beginning of the school year, but worsened as the year progressed. An examination of Student’s attendance during the 2018-2019 school year (District’s Exhibit 53) confirms such. District Exhibit 28 indicates a total of twenty-eight unexcused absences in the Third Marking Period. Witness REDACTED explained that after Student suffered an injury, he did not return to her class for the remainder of the school year. Witness REDACTED noted that Student’s reading comprehension was low, which was addressed by having her teaching assistant work with Student in a smaller group. Witness REDACTED confirmed that Student’s inattentiveness increased as the school year progressed, but attributed such to solely to Student’s use of his phone. Witness REDACTED that confirmed Student mastered none his Annual Goals and explained why she believed he did not. Witness REDACTED also indicated that she did not know if Student had a diagnosis of ADHD, but testified that she observed no evidence of such. Thus, it is my finding that such the failure of the I.E.P. to notice such diagnosis such does not rise to the level of a deprivation of FAPE.

It is my further finding that District performed all necessary evaluations to ensure Student received a proper program. I specifically find that it was unnecessary for District to conduct a Functional Behavioral Assessment to determine the basis of Student’s displayed inattention and distraction in class, as the basis for such was clear to his teachers.

As noted by Witness REDACTED, Student suffered an injury in early April of 2019 and was placed on Home Instruction for the remainder of the 2018-2019 school year. I am also satisfied that District appropriately provided Student with Home Instruction during the latter portion of the 2018-2019 school year.

It is, therefore, my finding and determination that District has successfully borne its burden of establishing that it offered Student a free, appropriate public education during the 2018-2019 school year. As noted previously, I find that the fact that District personnel involved with Student’s education during the 2018-2019 school year were unaware of Student’s diagnosis of ADHD does not alter that determination.

ISSUE THREE

DID DISTRICT VIOLATE STUDENT’S RIGHTS IN FAILING TO PROVIDE

STUDENT WITH AN INDEPENDENT EDUCATIONAL EVALUATION?

Parent, by letter or email to District, dated August 28, 2019, advised District that she was disputing the most recent evaluation of her son and requested a Neuropsychological Evaluation at District’s expense (District Exhibit 40). In response to such request, District Director of Special Programs REDACTED, on August 29, 2019, advised Parent that its most recent evaluations of Student were conducted in January of 2018 and that if Parent disagreed with any of those evaluations, Parent could request an Independent Educational Evaluation (IEE) for such. However, explained Director REDACTED to Parent, District had never conducted a Neuropsychological Evaluation and that a Neuropsychological Evaluation was different from any evaluation conducted by District, rendering Parent’s request inappropriate (District Exhibit 41).

Both the provisions of the Regulations of the United States Department of Education (C.F.R. §300.502 and the Regulations of the Commissioner of Education of the State of New York (8 NYCRR 200.5(g)(1) contain identical provisions regarding a parental request for an IEE. They are, in part:

• • (i) If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense (1) (iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to shoe that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

It is clear from the above that Parent is not entitled to the requested Independent Educational Evaluation at public expense, as Parent has not disagreed with an evaluation obtained or conducted by the school district, but seeks a far different type of evaluation. The testimony of Witness REDACTED established the differences between a Neuropsychological Evaluation and a Psychological Evaluation. As District has not performed any Neuropsychological Evaluation involving Student, there is no evaluation of which District might seek to establish the validity in an Impartial Hearing. In deciding

Application of a Student with a Disability, Appeal #13-216, the State Review Officer stated:

Because the district did not conduct a neuropsychological evaluation of the student with which parent disagrees, the parent is unable to obtain a neuropsychological IEE at public expense on this basis.

It is my finding and determination that District did not violate any of Student’s (or Parent’s) rights in failing to provide Student with an Independent Educational Evaluation.

ISSUE FOUR

DID DISTRICT FAIL TO PROVIDE STUDENT WITH A FREE, APPROPRIATE

PUBLIC EDUCATION BY FAILING TO KEEP STUDENT SAFE FROM

BULLYING?

The Parent’s Complaint alleges that Student was bullied during the 2018-2019 and 2019-2020 school years, rendering placement in District’s school unsafe for Student to attend. It is further alleged that not only did such failure on the part of District render Student so psychologically damaged by depression caused by such bullying as to render Student’s program during the 2018-2019 and 2019-2020 school years inappropriate, but requires that District either place Student at another educational facility or become responsible for Student’s costs at a private educational facility of Parent’s choosing.

There were basically six incidents that were the subject of testimony in this proceeding.

The first occurred when Student and his friends, including REDACTED, were shopping at a local mall when a group of others – whom Student identified as members of The REDACTED Gang – surrounded and began to yell at Student’s friends. According to Student, Student politely told that Student and his friends would be leaving the mall, as they were REDACTED at his friends, when he was pushed. According to Student’s testimony, “they were ready to fight me when I had no problem with them” so Student just left the mall (T.R.665-666).

I take note of the fact that Student was not the target of the name calling and became involved of his own volition. I also note that such incident did not take place on or near school grounds.

The second incident occurred on January 25, 2019, when a message was purportedly sent to Student while Student was at home, displaying the front of Student’s home, indicating the persons were in a car outside Student’s home, and displaying weapons, and telling Student to come out (T.R.667). According to Parent, Student raced downstairs with the intention of going out, but was stopped by Parent, who called Police (T.R.828- 829) It appears the Police arrived and removed the six passengers – one by one. A search of the vehicle was negative (Parent’s Exhibit II). The Police Report (Parent’s Exhibit II)

REDACTED noted Student’s statement that an incident had previously occurred between Student and one of the occupants of the vehicle, REDACTED, over a female.

Again, I note that such incident did not occur at or near, District facilities. I also note the testimony of Vice Principal REDACTED that District had initiated disciplinary procedures against the other student that had resulted in the suspension of the other student from the REDACTED School for the remainder of the school year.

The third incident occurred on April 9, 2019, again off school property, As described by Student, Student had arranged to go to the home of a new friend in order for both to go to a store. As they both returned from the planned trip, REDACTED appeared, calling out the name of the friend, and jumping on him, knocking the friend to the ground.

Student interceded, pushing the attacker off his friend, when he was stabbed by his former friend (T.R.671). Student suffered wounds to his arm and abdomen, requiring hospitalization.

Again, I note that Student was not the target of the attack and was wounded when he intervened. I also note that the attack did not take place at or near school property.

The fourth incident occurred on or about July 1, 2019, when Student was attending the REDACTED County Fair. According to the testimony of Student, Student and his friends ran into members of the REDACTED Gang, who approached, basically threatening Student, with one asking if Student wanted to fight, while lifting up his shirt to display a gun (T.R.673). Student testified that he said “No” and just walked away. Student did not see the person again that day and left. Student added that sometime in August, while at a friend’s house, Student ran into the same person, who said the same thing and did the same thing that had been said and done at the Fair.

Again, I note that such incident(s) did not occur on or near school property.

The fifth incident occurred on September 9, 2019. According to the testimony of Student, during the lunch period, while Student was in the School Cafeteria, a student whom Student described as a gang member said to Student “You are a REDACTED – you don’t want to fight” (T..675). Student testified that he responded “You are not going to touch me” and walked away. Student and a friend then went to use the bathroom.

However, upon entering, Student found the gang members already there. Two of the gang members blocked the door and REDACTED announce “thirty seconds of fighting”. At that, according to Student, he was punched in the chest by REDACTED and they began to fight (T.R.677).

Assistant Principal REDACTED described in his testimony a somewhat different scenario, based on hallway video and discussions with students, stating that a verbal altercation had occurred between Student and another, with Student as the aggressor, that ended with the agreement that the two of them would meet for a thirty-second fight in the bathroom. Hallway video showed that the students them separated from the cafeteria, with Student walking down what was referred to as the 170’s hallway, and the other student, with friends, going into the bathroom outside of the cafeteria, with others funneling in thereafter (T.R.190). The Hallway video showed Student coming back down the hallway by the cafeteria and entering the bathroom. The students were thereafter seen leaving the bathroom, while the other student was brought through the hallways – wearing a sweatshirt with a hood – to the Nurse’s Office and thereafter to the Hospital (T.R.191). Witness REDACTED confirmed that the video was still maintained by District. However, neither party sought to introduce such into evidence.

I take note of the fact that this incident took place withing the District building. I also take note of the fact that Student had, on February 22, 2019, been suspended for a period of five days, for shoving REDACTED, the same student involved in the September 2019 incident, in the hallway, an act also confirmed by the hallway video (Exhibit 36) (T.R.696-697).

I also note the similarity between Student’s actions on September 9, 2019, as described above, and the reported actions of Student on June 18, 2018, as Student concluded his REDACTED Grade at REDACTED School (District Exhibit 49 at p. 12). The description of that event reads:

[Student] and another male student communicated with each other over the weekend exchanging insults and threats via social media and planned to get into a physical altercation outside of school.

When this did not occur, [Student] sought out said student in his classroom during homeroom and punched him in the ear. This student had to seek immediate medical attention both in and out of school.

It is my finding that Student has lied under oath in his description of the incident of September 9, 2019. I accept as accurate the description testified to by Witness REDACTED.

Finally, there are claims by Student that, on many occasions, Student was harassed during the school day by other students associated with the REDACTED Gang, who would follow him in the hallways, mocking Student for needing a Special Class or the fact that Student’s younger sibling was autistic. Assistant Principal REDACTED testified that, sometime in October of Student’s REDACTED Grade, Student spoke to Mr. REDACTED regarding being so harassed (T.R.221). According to Witness REDACTED, he sent Student back to class, stating he would speak to the others. Witness REDACTED, who served as a School Counsellor at District’s High School, was called as a witness by Parent. Witness REDACTED testified that in February of 2019, Student had come to her office looking physically upset. Witness REDACTED recalled that Student seemed upset and overwhelmed but spoke very little. Student was asked if he had any suicidal thoughts or plans to do so, which Student denied, but admitted to having such in the past (T.R. 523). There appeared to be no other shared concerns. Student was allowed to sit in the Guidance Office until time to leave and, when Parent was unable to pick Student up, was sent home by bus. Clearly, no complaint about being followed in the hallways was made by Student to Counselor REDACTED.

Thus, there appears to be no other time that Student complained of being the target of harassment than the meeting with Mr. REDACTED in October of 2019. It was not something Student mentioned to Ms. REDACTED, nor to Special Education Teachers REDACTED or REDACTED.

This, while Student has testified that, on many occasions, Student was followed by others in the hallway, with threats and insults for being in special classes (T.R.681), I doubt the accuracy or the veracity of much of such testimony. While Parent repeated in her testimony, much of what Student had allegedly told Parent, I do not accept such, as such is based on her recollection of what Student told her, as she was not directly involved in school events. The only source of such allegations of harassment within school facilities emanated from Student. Having determined that Student was untruthful in his description of the altercation of September 7, 2019, all of his testimony is subject to rejection.

Moreover, I find that District appropriately responded to the known concerns that Student expressed. While the vast majority of “bullying” events occurred off District property, Witness REDACTED involved District in assisting Parent in securing Orders of Protection and counseling Student as to how Student might respond to perceived off-site “bullying” actions. Further, after Student’s stabbing in April of 2019,

District consented to Parent’s request that, after Student had recovered and was cleared to return to school, that Student would be permitted to remain on Home Instruction for the entire balance of the 2018-2019 school year.

While both counsel, in their Closing Briefs, cited the decision rendered in T.K v.

New York City Dep’t of Educ., 779 F.Supp.2d, 316, in which the Court established a four-prong test to determine if the district had failed to protect a disabled student from bullying, I find and determine, without a review of such decision, that District, in this proceeding, has met all of its obligations regarding such issue.

ISSUE FIVE

IS STUDENT ENTITLED TO AN AWARD OF

COMPENSATORTY EDUCATION?

Parent’s Due Process Complaint sought an award of Compensatory Education for the claimed failure of District to provided Student with a free, appropriate public education during the 2017-2018 and 2018-2019 school years. Having found and determined that District provided Student with a free, appropriate public education for those school years, it is my finding and determination that Student is not entitled to any Compensatory Education.

ISSUE SIX

DID DISTRICT AFFORD TO STUDENT A FREE, APPROPRIATE

PUBLIC EDUCATION DURING THE 2019-2020 SCHOOL YEAR?

District’s C.S.E convened on March 27, 2019 to conduct an Annual Review and prepared Student’s program for the 2019-2020 school year. The meeting was chaired by School Psychologist REDACTED. Present also were Special Education Teacher REDACTED; General Education Teacher REDACTED; School Social Worker REDACTED; and Speech/Language Therapist REDACTED. Parent (and Student apparently) participated by telephone (District Exhibit 11). Student’s REDACTED Teacher noted that Student was very distracted and off-task, was often inappropriate socially with his peers and was often on his phone, distracting Student from his work. Student’s REDACTED Therapist, while stating that Student was doing well, also commented Student’s distraction because of his phone. The Committee recommended that Student receive his program in a Special Class having a staffing ration of 15:1+1 in all core subjects and reduced Student’s Speech/Language Therapy to twenty times per year, forty minutes per session, in a group of five. The sole Management Need noted in the I.E.P. was that Student required a small teacher to student ratio program with minimal distractions in order to academically progress. While I fail to comprehend why the Committee failed to deal with Student’s inappropriate utilization of his phone – which all participants seemed to acknowledge was the cause of his inattentiveness – I do not find that such omission, standing alone, is sufficient to find that the recommended program failed to offer a free, appropriate education program.

Moreover, I note that Student’s program for the 2019-2020 school year commenced on September 4, 2019. Student engaged in his planned altercation with another student on September 9, 2019, and was suspended for five days on that date by Principal REDACTED

(District’s Exhibit 44). Parent was also advised in Principal REDACTED’s Letter (Exhibit 44) that a Superintendent’s Hearing would be conducted on September 16, 2019.

District’s Committee conducted a Manifestation Determination Review (MDR) on September 16, 2019 to determine whether Student’s actions of fighting in the bathroom on September 9, 2019 had been a result of his disability, such Review being conducted in accordance with the provisions of Commissioner’s Regulations (8 NYCRR - Part 201).

The Committee Meeting was chaired by Director of Special Programs REDACTED. Present also were School Psychologist REDACTED; Special Education Teacher REDACTED; General Education Teacher REDACTED; Assistant Principal REDACTED; Principal REDACTED; REDACTED, Parent; and Student. The Committee determined that Student’s actions were not directly and substantially related to his math learning disability. Later that date, District Superintendent REDACTED conducted a Superintendent’s Hearing pursuant to the provisions of Education Law

§3214. By correspondence dated September 16, 2019, Superintendent REDACTED notified Parent that Student had been found guilty of the charge and was suspended for the remainder of the 2019-2020 school year and that a tutor would be provided during the duration of the suspension (District Exhibit 47).

At its Manifestation Determination Review meeting of September 16, 2019, the Committee also amended Student’s special education program to:

“…an out of-district (sic) pending the outcome of the superintendent’s hearing. [Student] will receive home instruction during the suspension and pending placement”

However, the Recommended Special Education Program and Services portion of the I.E.P. (District’s Exhibit 12) describes Student Program as “Home Instruction – 1 x daily for 2 hr.” and “Related Services” as “None”. Also noted in the I.E.P. (District’s Exhibit 12) is the Projected Start Date of 09/17/2019 and the Projected End Date of 06/26/2020. Such is no more that Superintendent REDACTED had advised Parent would be Student’s program in his correspondence to Parent of September 16, 2019 (District Exhibit 47).

Witness REDACTED confirmed that what the Committee had determined was that, based not on any concern for Student’s safety, but the feeling that Student needed more therapeutic supports, as reflected in letters which Parent had solicited from two of Student’s doctors and presented to the Committee at its meeting (District Exhibits 39 and 43) (T.R.1103), Student was to be referred to an out-of-district placement (T.R.1102). After the meeting, according to the testimony of Witness REDACTED, District sent packets to the REDACTED County and REDACTED County BOCES (T.R.1104) and to the REDACTED County and REDACTED County BOCES (T.R.1105) and that all four BOCES have rejected the referral.

If the latest I.E.P. on which District relies in contending that it offered Student a free, appropriate public education for the 2019-2020 school year is that which the Committee created on September 16, 2019 (District Exhibit 12), it is clearly woefully inadequate, failing to offer any special education services but only that instruction promised by Superintendent REDACTED. While I note that the I.E.P. contains Annual Goals for Speech/Language, it specifically provides for no Related Services.

If District contends that the program offered to Student on which it relies to establish that it offered Student a free, appropriate public education during the 2019- 2020 school year is that which placed Student in an out-of-district program, it is also clearly inadequate. Firstly, while Witness REDACTED testified that it sent packets to the four named BOCES, one can only wonder what were included in such packets. It certainly could not have been the I.E.P. of September 16, 2019 (Exhibit 12) which recommended Home Instruction. District has failed to establish that it provided anything to the solicited BOCES on which such BOCES could rationally make a decision regarding its ability – or inability – to accept Student into its program.

Apparently, something was transmitted by District, as, according to the testimony of Witness REDACTED, not one of the BOCES accepted Student into its program (T.R.1104). However, the very fact that none of the solicited BOCES agreed to accept Student confirms the fact that District cannot and has not offered Student an appropriate program for the 2019-2020 school year.

It is my finding and determination that District has failed to meet its burden of establishing that it offered Student a free, appropriate public education for the 2019-2020 school year.

ISSUE SEVEN

IS PARENT ENTITLED TO AN ORDER PERMITTING PARENT TO PLACE

STUDENT AT A PRIVATE FACILITY AT DISTRICT EXPENSE?

The finding that District has failed to offer Student an appropriate education for the 2019-2020 school year requires that I review Parent’s application that she be permitted to place Student in a private educational facility of her choosing.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the Board of Education were inadequate or inappropriate, the services selected by the Parent were appropriate and equitable considerations support the Parent’s’ claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York, as is the case here, is not dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). For years, this “equitable” remedy was available only to those families fortunate enough to have the wherewithal to undertake the considerable expense of funding the unilateral educational placement and, thereafter, seeking reimbursement for such expenditure from the district. In 1998, in a proceeding entitled Connors v. Mills et al, 34 F. Supp 2d 795 (N.D.N.Y.), the Court addressed this specific defect. Citing the decision rendered in Susquenita Sch. Dist. v. Raelee, 96 F.3d 78 (Third Cir. 1996), the Court ruled that:

“Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunities for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” The first prong of the Burlington prerequisites – that the program offered by District was inadequate -has been established.

Parent seeks to have Student attend REDACTED School at District expense and, in furtherance thereof, submitted an application for Student to attend such facility in January of 2020 (District Exhibit 61). Student and Parent visited the facility in early January of 2020 for interview and, thereafter, Student spent a school day at the facility, shadowing its program. Testimony regarding the school and its program was provided by Witness REDACTED, the Head of School and by Witness REDACTED, the Assistant Head of School and Principal of REDACTED School. The School is located in REDACTED County, New York. It is not approved by the New York State Department of Education. According to the testimony of Witness REDACTED, the facility is an international co-educational boarding high school, for students with a language-based learning disability, with an enrollment of approximately forty students, and with a post-secondary program with an equal number of students. Most students are reported to have a full-scale IQ of about 70 (T.R.630). The School has a mandated dress code and a policy of forbidding the use of cell phones except during brief, appointed hours. The educational program begins at 8:30 a.m., with instruction in all core subjects, including an intensive Reading Plus program, as well as Art, Health and Interpersonal Relationship classes. Each day but Monday concludes with mandatory sports, after which students return to dorms to prepare for dinner – also with mandated dress code. Following dinner, students proceed to Study Hall, which lasts for one hour forty minutes and consists of approximately eight students and a proctor. At the conclusion of Study Hall, the students proceed to dorms, working on social skills. On Saturdays three periods of classes are conducted, followed by a longer sports program (T.R.635). The School offers Speech/Language therapy. Classes have an 8:1 ratio, with some smaller classes. Students are placed according to ability level rather than chronologically. Witness REDACTED, Head of School, basically reflected the description of School provided by Witness REDACTED. Witness REDACTED confirmed the policy that students are not permitted access to cell phone except on three evenings for approximately two hours (T.R.885). Witness REDACTED expressed her belief that the School could absolutely provide Student with an appropriate education (T.R.856).

Student has been accepted by the School as a boarding student (T.R.628). Parent has indicated that she does not have the funds to pay for Student’s placement at REDACTED School (T.R.912). There was testimony that the School also accepted two or three fairly local students into a Day Program. Parent’s application to REDACTED School (Exhibit 61) indicated the application was for the 2020 Day Program. However, I do not find that such restricts in any manner my jurisdiction to consider the School’s boarding program. In fact, District offered the testimony of its Director of Transportation REDACTED, who plotted the course from Student’s home to REDACTED School, which was estimated to be 70.9 miles. Witness REDACTED estimated travel time each way at approximately one and one-half hours, if no delays were encountered, explaining that, while much of the course was on roads that permitted speed of sixty-five miles per hour, school buses were mandated to go no faster than fifty-five miles per hours (T.R.1087-1089).

It is my finding that Student’s attendance at the School as a Day Student is inappropriate. Such would involve Student travelling from home to School for upwards of one and one-half hours, only to face a trip of, at best, equal time at the end of the Day Program. Further, it would require District’s Transportation Unit to have its drivers on the road to transport one student for at least six to eight hours per day. More importantly, were Student in the Day Program, Student would miss the mandatory sports program and the one-and-one half hour Evening Study Hall.

I do find, however, that the School does offer Student an appropriate educational program as a Boarding student. I find its regimented daily program appropriate.

Moreover, in light of the numerous statements by Student’s teachers at the REDACTED School that Student was very often distracted by the excessive use of his cell phone, the School’s prohibition of cell phones a positive.

It is, therefore, my finding and determination that Parent has successfully borne the burden of establishing the appropriateness of the REDACTED School.

I further find and determine that there is no Equitable Consideration contained in the Record before me that would require any diminishment of the relief sought by Parent.

It is, therefore, my determination that Parent is entitled to an Order permitting Parent to immediately place Student at REDACTED School for the remainder of the 2019-2020 school year, at District expense. District shall be obligated to transport Student from his home to the REDACTED School only on the first day of attendance and to transport Student from the REDACTED School to his home at the conclusion of the School program.

ORDER

Based upon the above review, it is

HEREBY ORDERED that the REDACTED Central School District pay such tuition as may be due to REDACTED School for Student’s enrollment and attendance at such educational facility for the balance of the 2019-2020 school year; and it is

FURTHER ORDERED that the REDACTED Central School District provide transportation to Student for Student’s initial trip to REDACTED School and for Student’s return trip from said facility at the conclusion of the 2019-02020 school; and it is

FURTHER ORDERED that all remaining issues as have been raised by Parent in Parent’s Due Process Complaint, dated September 18, 2019 be, and the same hereby are DISMISSED.

Dated: REDACTED, New York May 13, 2020 JAMES P. WALSH

Impartial Hearing Officer The above constitutes my decision that in accordance with the provisions of Article 89 of the New York State Education Law.

Within 40 days of the date of this Decision, Parent and/or the REDACTED Central School District has a right to appeal this Decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

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

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

DOCUMENTATION ENTERED INTO RECORD

No.: # of Pages Description Offered by

C 9 Student’s I.E.P. as prepared by District’s Parent

C.S.E. on 2-21-17

E 1 Copy of PASS Committee Referral of Parent Student, dated 2-14-19

I 2 Summary and Score Report by REDACTED, Parent

dated 2-20-15

M 3 Confidential Report – Re-Evaluation Parent

Academic Achievement Testing, dated 4-27-16

P 6 After Visit Summary by REDACTED Regional Parent

Medical Center, date 4-9-19

V 1 CT Brain Wo Contrast Report, date 9-9-19 Parent W 3 After Visit Summary by REDACTED Regional Parent

Medical Center, dated 9-9-19

• • 1 Work/School Excuse Letter by REDACTED Parent Regional Medical Center, dated 9-10-19
• • 6 Final Report of Evaluation of Right Thumb, Parent By Dr., dated 10-12-19 (1): Operative Report by, M.D., dated 1 11-11-19 (2); Healthcare History, Dated 10-3-19 (3)
• • 1 Student’s Report Card for Marking Period Parent Ending 6-23-16 AA 1 Student’s Report Card for Marking Period Parent Ending 6-21-17 EE 1 Letter to Parent from REDACTED High School Parent Principal REDACTED re: Absences, dated 4-11-19 GG 2 Order of Protection issued by redacted Court Parent Court Judge redacted against REDACTED dated 4-8-19 HH 1 Final Order of Protection issued by [redacted] Parent County Family Court against REDACTED dated 7-12-19 II 2 Incident Report by Town of [redacted] Police Parent Department, dated 1-25-19 LL 1 Student’s Cumulative Health Record Parent NN 1 Email chain between Parent and [redacted] Parent dated 2-8-19 PP 11 Curriculum Vitae of [redacted] Parent QQ 7 Report of Evaluation of Student by [redacted] Parent Psychiatry Group Practice P.C., dated 2-5-19 (3); Report of Session (4)

VV 1 Email by REDACTED re: Recommendation Parent

YY 21 District Health Records of Student – multi years Parent

• • 168 Supporting Papers submitted in connection District with District’s Motion for Partial Dismissal of parent’s Complaint
• • 12 Memorandum of Law submitted by District in District Connection with its Motion for Partial Dismissal of Parent’s Complaint
• • 2 Letter from District Counsel forwarding District District’s documents regarding District’s Motion for Partial Dismissal of Parent’s Complaint, and requesting adjournment, dated 12-4-19
• • 1 Letter from Parent’s Counsel, dated 12-5-19, District regarding District’s request for adjournments 5 10 Student’s I.E.P. as prepared by District’s C.S.E. District on 5-20-16 6 10 Student’s I.E.P. as prepared by District’s C.S.E. District on 2-21-17 7 11 Student’s I.E.P. as prepared by District’s C.S.E. District on 10-2-17 8 11 Student’s I.E.P. as prepared by District’s C.S.E. District on 2-6-18 9 12 Student’s I.E.P. as prepared by District’s C.S.E. District on 10-22-18 10 12 Student’s I.E.P. as prepared by District’s C.S.E. District on 2-19-19 11 10 Student’s I.E.P. as prepared by District’s C.S.E. District on 3-27-19 12 10 Student’s I.E.P. as prepared by District’s C.S.E. District at a Manifestation Determination Review held on 9-16-19 14 2 Speech-Language Report, dated 3-8-16, by District REDACTED TSHH MS SP ED 15 1 Triennial Update of Social, Developmental & District Medical History, dated 7-7-17 16 5 Confidential Psychological Report, by District REDACTED, MA, dated 1-3-18 17 4 Speech-Language Triennial Report, dated District 1-18-18.by REDACTED SHH MS SP ED
• • 2 Confidential Report – Reevaluation Academic District Achievement Testing, dated 1-5-18, by REDACTED, Special Education Teacher/Case Manager
• • 3 Psychological Report by [redacted], Ph.D., District dated 3-4-15
• • 5 STAR Summary Report – [redacted]Grade District
• • 5 STAR Math Growth Report –[redacted]Grade District
• • 4 STAR Reading Growth Report –[redacted]Grade District
• • 1 Student’s Report Card for Marking Period District ending 6-22-16
• • 1 Student’s Report Card for Marking Period District ending 6-26-19
• • 1 Student’s Transcript dated 8-13-19 District
• • 7 Progress Report for Goals and Objectives - District 2017-2018
• • 6 Progress Report for Goals and Objectives - District 2018-2019
• • 2 Letter to Parent from Principal [redacted], District Re: Student’s alleged violation of Code of Conduct, dated 10-11-18 (1); Student Referral, dated 10-11-18
• • 2 Letter to Parent from Principal REDACTED, District Re: Student’s alleged violation of Code of Conduct, dated 1-4-19 (1): Student Referral, dated 1-4-1
• • 2 Letter to Parent from Principal REDACTED, District Re: Student’s alleged violation of Code of Conduct, dated 2-22-19 (1): Student Referral, dated 2-22-19
• • 1 Letter from [redacted], M.D. to To Whom It District Concern re: Home Tutoring, dated 4-15-19
• • 1 Email chain between Parent and Principal District REDACTED, dated 5-15-19 re: Continuation of Home Tutoring
• • 1 Letter from Dr. [redacted] District Healthcare, dated 8-28-19 to?
• • 1 Email from Parent to REDACTED, dated District 8-28-19, re: Neuropsychological Evaluation
• • 1 Letter to Parent from REDACTED, dated District 8-29-19, re: IEE
• • 1 Letter from [redacted], M.D. to To District Whom It May Concern, dated 9-3-19
• • 1 Letter from REDACTED, ACCESS, dated District 9-34-19, to To Whom It May Concern
• • 1 Letter to Parent, dated 9-9-19, from District Principal REDACTED re: Student’s alleged violation of Code of Conduct
• • 1 Letter to Parent, dated 9-9-19, from District Principal REDACTED, re: Superintendent’s Hearing
• • 1 Letter to To Whom It May Concern, District dated 9-13-19, from [redacted], M.D.
• • 1 Letter to Parent from Superintendent District REDACTED, dated 9-16-19 re: Decision
• • 12 Student Referrals, all dated 12-3-19, District Re: Incidents of 44-8-16 (1);11-2-16 (1); 11-29-16 (1); 12-4-17 (1); 2-26-18 (1); 2-26-18 (1); 3-9-18 (1); 3-16-18 (1);

4-13-18 (1); 5-15-18 (1); 6-7-18 (1);

6-18-18 (1)

• • 3 Dignity For All Students: Bullying, District Cyberbullying, Harassment and Hazing Report Form, dated 10/11/18 51 3 Dignity For All Students: Bullying, Cyberbullying, Harassment and Hazing Report Form, dated 12-19-18 District 52 3 Dignity For All Students: Bullying, Cyberbullying, Harassment and Hazing District Report Form, dated 1-28-19 53 8 Student’s Attendance Report for the 2018-2019 school year New York State Education Department Complaint Form by Parent, dated 8-15-18 District District 55 5 REDACTED Individual District Psychotherapy Progress Notes, dated 4-22-19
• • 5 REDACTED Individual District Psychotherapy Progress Notes, dated 5-7-19
• • 5 REDACTED Individual District Psychotherapy Progress Notes, dated 7-12-19
• • 5 REDACTED Individual District Psychotherapy Progress Notes, dated 8-13-19
• • 6 REDACTED Individual District Psychotherapy Progress Notes, dated 9-27-19 60 5 REDACTED Individual District Psychotherapy Progress Notes, dated Dated 10-10-19 61 5 Application for Admission, dated 1-21-20, REDACTED School District 62 4 REDACTED Individual District Psychotherapy Progress Notes, dated 5-14-19 63 4 REDACTED Individual District Psychotherapy Progress Notes, dated 6-4-19 64 2 Printout of Google Maps – Trip from Parent’s Home to REDACTED School District
• • 3 Letter from IHO James Walsh to Both Counsel, IHO Dated 12/6/19
• • 10 Parent’s Due Process Complaint, dated 9/18/19 IHO

OTHER DOCUMENTATION PLACED IN RECORD

No.: # of Pages Description

1 2 Consent to Change Attorney, dated 3/23/20

PLLC and by Parent

PLLC and by Parent by

2

Copy of Email from Parent’s Counsel to District Re: Second Hearing Demand, dated 9/18/19

1

Copy of Email from District’s Counsel to Parent’s Counsel Re: Amended Complaint

2

Letter from IHO James Walsh to both Counsel, Re: Results of Pre-Hearing Conference, dated 10/25/19

3

Letter from IHO James Walsh to both Counsel, Re: Hearing Schedule, dated 11/5/19

2

Letter from IHO James Walsh to both Counsel, dated 12/30/19, Re: Additional Hearing Dates

Letter from IHO James Walsh to both Counsel, dated 1-17-20, Re; Hearing Schedule for District’s Partial Motion to Dismiss

Letter from IHO James Walsh to both Counsel, dated 2-20-20, Re; Hearing Schedule

• • 31 Post-Hearing Memorandum on Behalf of Parent, dated 5/1/20
• • 32 Post Hearing Brief on Behalf of District, dated 5/1/20.