Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 FINDINGS OF FACT AND ORDER of the Regulations of the Commissioner of Education BEDS No. REDACTED NYS ID. No. 532953

REDACTED and REDACTED on behalf of their minor son, REDACTED

-against- The REDACTED Public Schools

Procedural Context

By letter dated November 18, 2019 I was appointed to hear the matter of REDACTED and REDACTED on behalf of their minor child, REDACTED versus the REDACTED Public Schools (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, on November 19, 2019, the District interposed its Answer. Exh. 2. On December 19, 2019 the undersigned received notification from SED that the resolution period had expired. Although, at this time, it appeared that settlement negotiations might be fruitful, ultimately this did not occur. In furtherance thereof, a pre-hearing conference was convened telephonically on January 18, 2020 for the purpose of developing a litigation calendar and, where possible, framing the issues. Subject to the exigencies of the COVID 19 pandemic, hearings were then held via videoconferencing on April 27, 2020; May 6, 2020; May 11, 2020; May 15, 2020; July 1, 2020; July 8, 2020 and July 13, 2020. On this last occasion, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result, the compliance date for issuing a decision in the above-referenced matter was duly extended to November 2, 2020.

Specifically, the Parents assert that the School District’s educational placements for the 2018-2019 and 2019-2020 school years, as memorialized by the May 8, 2018; June 13, 2018 and June 12, 2019 IEPs, stand in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and are neither suitable nor appropriate for their child. Exhs. 24, 25 and 31. As a result thereof, they are seeking tuition reimbursement for the 2018-2019 and 2019-2020 school years in furtherance of unilateral transfer to the Private School (hereinafter referred to as “Private School”), a non-public school setting. As a corollary, the Parents have defended the educational program implemented by Private School and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Beyond this, they maintain that their actions do not militate against their equitable entitlement to reimbursement.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2018-2019 school year, the student was approximately REDACTED years old and commencing fifth grade. Thereafter, REDACTED began the 2019-2020 school year as a sixth grader. I note that REDACTED is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and is classified as “other health impaired” as that term is defined by 20 U.S.C. § 1401(a)(1). The child presents with an undisputed generalized REDACTED disorder and REDACTED hyperactivity disorder (hereinafter “REDACTED”). Additional co-morbidities include a specific reading, written expression and math disorder along with an REDACTED disorder. Exh. 24 at 1. Additional diagnoses include REDACTED disorder, REDACTED disorder and REDACTED disorder. Exh. 31 at 1. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. A list of persons in attendance and of evidence is appended hereto.

The School District’s Case and Summary of Witness Testimony

REDACTED^[1] testified as lead witness on behalf of the District. Ms. REDACTED is licensed to teach special education and has specifically served as the special education instructor in the District’s third grade integrated co-teaching class (hereinafter “ICT”) since the 2016-2017 school year. Tr. at 64. REDACTED was one of seven special education students assigned to her ICT classroom of approximately 20 students during the 2016-2017 school year. Although Ms. REDACTED indicated that most of her students fell within one to two academic years behind their typically developing peers, she opined that this was not problematic as instruction was highly individualized. Tr. at 66.

The witness described REDACTED as an emergent reader, having entered her 2016-2017 third grade classroom scoring as a level G on the Teacher’s College/Columbia Reading Assessment (hereinafter the “TC”). Nevertheless, while REDACTED’s initial score reflected performance at the middle of first grade, the child finished his school year as a level M reader, a level aligned with the end of second grade. Tr. at 77-78,103; Exh. 18. The witness noted that the TC reading levels reflect a matrix of fluency and oral reading proficiency along with basic and inferential comprehension skills. Based upon REDACTED’s progress, the witness opined that the student had made significant progress during his 2016-2017 third grade school year. Tr. at 76. Referencing the reading goals articulated in the 2016-2017 IEP, Ms. REDACTED indicated that REDACTED had progressed towards his goals, although she was uncertain if he had met all of them. Exh. 6; Tr. at 83. Having so testified, Ms. REDACTED indicated that REDACTED had voiced ongoing concerns throughout the year about the delay in REDACTED’s reading skills and, as a result, she and REDACTED, the District reading specialist, consulted frequently. Nevertheless, while accessing the expertise of REDACTED, the witness continued to assert that REDACTED did not require supplemental reading services.

Referencing REDACTED’s math, spelling and writing skills, the witness testified that REDACTED had demonstrated significant progress during the year. Likewise, on a social-emotional level, Ms. REDACTED testified that REDACTED had a successful year, developing many friendships in the classroom and participating positively in group instruction. Although she was aware that REDACTED had a generalized REDACTED disorder, she described this condition as mild during the 2016-2017 school year. For example, the witness noted that REDACTED needed to prepare himself mentally as to the day’s schedule and would perseverate about his transportation home. In math, the child would automatically seek help before tackling a problem independently. Nevertheless, she believed these concerns had decreased as the year ensued. Tr. at 90-92.

Ms. REDACTED described the manner in which REDACTED received educational services in her ICT classroom. She noted that instruction is initially provided to the entire special education cohort within the mainstream classroom. Following this, both small group and one-to-one support is offered in all academic areas. Ms. REDACTED indicated that additional content area support was offered at least three times per week in sessions which could last anywhere from 10 to 25 minutes. Tr. at 80, 125. She acknowledged, however, that much of REDACTED’s individualized instruction occurred during the readers workshop period. Tr. at 81.

As an ICT student, REDACTED’s reading support included daily whole class ELA instruction lasting approximately 40 minutes to one hour. In addition, the student participated in the Really Great Reading (hereinafter “RGR”) program which was also offered in an individualized and small group setting every day for 25-40 minutes. Tr. at 85, 89. Ms. REDACTED noted that the RGR protocol is a phonics-oriented program to which REDACTED was responsive, and as a result, the child had increased his decoding abilities significantly. Tr. at 86. This support was additionally bolstered by Ms. REDACTED’s consultations with Ms. REDACTED.

Ms. REDACTED opined that the student’s needs could be addressed adequately through direct RGR instruction within her small special education class. Consequently, she opined that REDACTED did not require additional Academic Intervention Services (hereinafter “AIS”)^[2] reading support at this time. Tr. at 88-89. As a result, the 2016-2017 IEP did not include AIS as a mandated service, nor did the child receive it. Tr. at 116; Exh. 6. Nevertheless, although the Parent acknowledged REDACTED’s progress, she continued to request additional services as she believed REDACTED’s global reading skills were only getting worse.

Ms. REDACTED testified that she participated in the May 9, 2017 IEP convene for REDACTED At this time, she shared information about REDACTED’s over-all progress. Specifically, the child had now reached goal in decoding and had begun to work on higher order comprehension skills. Similarly, REDACTED’s writing, math and spelling had improved. She noted that the student was now learning how to develop an idea with the goal of producing a cogent expository piece. While REDACTED continued to require support elaborating on his ideas, Ms. REDACTED testified that the mechanics of writing were solidifying. Tr. at 95. Similarly, as evidenced by his increasing ability to work independently, REDACTED was becoming more proficient in multiplication and division and, as REDACTED was able to build upon a knowledge base, no goals were established in this area. Exh. 12, passim.

Finally, three social-emotional goals were developed for REDACTED as the child continued to struggle with self-regulation, recognizing social cues and self-advocacy. Tr. at 96, 132-133, 135; Exh. 12 at 10. Nevertheless, the witness did not recall discussing REDACTED’s social-emotional issues and did not recall whether REDACTED had been seeing a private therapist and psychologist. Rather, Ms. REDACTED described REDACTED’s symptomatology as fleeting anxieties which easily lent themselves to redirection and lasted little more than “a few moments” throughout the year. Tr. at 142. Indeed, while REDACTED’s emotional issues occurred in “bursts” and may have “been a disruption for him a few minutes in the classroom... he was able to learn that year. He was able to progress, and that didn’t keep him from learning or progressing.” Tr. at 142.

As a result, Ms. REDACTED did not believe an FBA or BIP was indicated as REDACTED did not demonstrate any discrete behaviors which needed to be addressed. Moreover, although Ms. REDACTED indicated that REDACTED required direct instruction in reading, she noted that individualized instruction was programmatic within the ICT program and especially among the seven classified students in her class. Tr. at 128. It was not, therefore, a service which needed to be incorporated into the child’s IEP. In sum, the witness opined that the IEP of May 9, 2017 was appropriate for REDACTED

On cross-examination, the witness acknowledged that at one point, REDACTED began to use a heart monitor, an intervention related to the child’s REDACTED. Moreover, beyond REDACTED’s scheduling concerns, REDACTED had now become increasingly anxious about other transitions and academic material. As the year progressed, the child additionally perseverated over morning transportation, afternoon pickups and the whereabouts of his mother. As a result, REDACTED was eventually granted telephone privileges so that he might hear his mother’s voice throughout the day. Tr. at 124. Although she no longer recalled the details, Ms. REDACTED recalled multiple team conversations with both District psychologist REDACTED, INSTRUCTOR and District Social Worker regarding REDACTED’s emotional status, a situation which the witness believed interfered with his ability to access an education while they were occurring. Tr. at 126-127, 129.

INSTRUCTOR additionally testified on behalf of the School District. INSTRUCTOR holds a master’s degree in special education and served as REDACTED’s fourth grade special education teacher within an integrated co-teaching (hereinafter “ICT”) class during the 2017-2018 school year. Tr. at 147. For five months of this year, however, the witness was on maternity leave and did not observe the child at any time. Tr. at 260. She testified that her knowledge of REDACTED during this period reflected conversations with her co-teacher and leave replacement, Ms. REDACTED, on a near daily basis.

The witness was, however, present at the beginning of the school year and had a caseload of seven classified children. INSTRUCTOR described REDACTED as a child who struggled with REDACTED, particularly during transitional periods. She testified at the outset, “I noticed and then I had a brief communication with REDACTED in that immediately we discussed his feelings of REDACTED. What I noticed throughout the year is that those [periods of REDACTED] happened during transitional times.” Tr. at 148. At these moments, the witness opined that REDACTED’s REDACTED did, in fact, exert an impact upon the child’s ability to access educational materials being presented, albeit a negligible impact. Tr. at 264-266, 269. Although the witness was aware that the child was seeing both a psychologist and psychiatrist for his emotional issues, she did not recall whether REDACTED’s medications included an anti-REDACTED protocol. Tr. at 271.

At the outset of the 2017-2018 school year, INSTRUCTOR indicated that she quickly developed a rapport with REDACTED although it took two to three weeks for him to acclimate to her classroom. Having collaborated with the Parent over the summer, INSTRUCTOR indicated that she understood many of the instructional modifications REDACTED would require once school started. Specifically, he benefitted from frequent check-ins, wait time to organize his thoughts and positive reinforcement. Beyond her discussions with the Parent, INSTRUCTOR additionally testified that she had reviewed the child’s IEP with the classroom teacher prior to the beginning of classes and understood his need for various educational supports. Consequently, INSTRUCTOR utilized her daily morning period to provide REDACTED with approximately 20 minutes of individualized pre-teaching, re-teaching and personal communication. Tr. at 289.

In reading, INSTRUCTOR testified that REDACTED demonstrated weaknesses with decoding. As the child had utilized the multi-sensory RGR program the year before, INSTRUCTOR additionally brought this program to her classroom. She testified that RGR was primarily offered as a classroom service with REDACTED’s 7-8 minutes of individualized attention directed at assessment and tracking, rather than instruction. Tr. at 289. As the year progressed, she noted that REDACTED grew as a reader. Having commenced the 2017-2018 school year as a level N,^[3] INSTRUCTOR testified that REDACTED concluded the year at level Q, an advanced decoder only three months below grade level. Tr. at 158-160, 162; Exh. 18. Nevertheless, the witness indicated that REDACTED’s skills were inconsistent and he continued to require “look backs” into the text and prompting for phrasing of questions. Tr. at 149.

As a result of REDACTED’s reading issues, the child received several forms of reading instruction. This included three to five 20-minute small group sessions per week of RGR, a session in which REDACTED’s seven to eight minutes of 1:1 individualized attention were primarily directed at assessment. Tr. at 156-157, 302. In addition, REDACTED participated in a Leveled Literacy Instruction pull-out (hereinafter “LLI”) comprised of four (30 minute) sessions per week within a small group of four children. The witness noted that although LLI is a building level service, Reading INSTRUCTOR, the LLI teacher, additionally addressed REDACTED’s IEP reading goals during this time. Tr. at 286-287. Finally, REDACTED participated in the Teachers College Reading program, a daily 40-minute protocol which she provided as a group to the seven special education students in the ICT class.^[4] The TC workshop model included whole and small group instruction along with individualized attention while other students were engaged with independent practice. INSTRUCTOR further indicated that REDACTED received additional individualized attention before class. This instructional time occurred in the morning before the bell rang, as the entire class entered the room with both teachers present. INSTRUCTOR testified that she utilized this time for various purposes, including pre-teaching, spelling review and emotional support. Tr. at 165-168, 305-306.

In writing, REDACTED struggled with the mechanics of written expression, exhibiting deficits in punctuation and the ability to write a structured paragraph. As a result, REDACTED required oral rehearsals and graphic organizers before embarking upon a writing assignment. Tr. at 150, 180. The witness described a writing program which included one-to-one conferencing and a structured approach to expository writing. In this manner, tasks were broken into small, manageable components. Depending upon the writing genre addressed, REDACTED was furnished with a “formulaic, systematic” approach to paragraph development. Commencing with a basic sentence, the child was provided with a graphic organizer to facilitate REDACTED’s ability to write a narrative, “scene by scene.” Tr. at 180. This enabled REDACTED to prepare a more sophisticated paragraph which reflected a deeper understanding of both character and plot details. Referencing the 2017-2018 end of year report card, the witness indicated that REDACTED achieved all his reading, writing and social-emotional goals although his study skills remained inconsistent. Tr. at 181-182; Exh. 35, passim.

Emotionally, REDACTED struggled with periods of REDACTED although the witness indicated that following the initial transition period at the beginning of school, REDACTED’s REDACTED subsided. Although INSTRUCTOR described REDACTED as a “happy, friendly, easygoing kid,” she noted that the child continued to experience periodic flareups of his REDACTED. Although these periods of REDACTED were not continuous, exacerbations occurred, “If something happened or there was an event.... I wouldn’t say it impacted his academics all throughout the year. Were there moments? Yes. And we addressed it otherwise he wouldn’t be able to do the academics... “Tr. at 169-171. On some occasions, the witness observed physical tics and squinting as a manifestation of the child’s REDACTED. On other occasions, the REDACTED would put his head down at his desk and cry. Significantly, INSTRUCTOR acknowledged that REDACTED’s crying did not occur daily but were evidenced in “clusters” throughout the year. Nevertheless, although REDACTED’s crying in class was significant enough to require her intervention, INSTRUCTOR opined that she did not recall any referral to the school social worker and/or psychologist, nor did she believe an FBA was indicated. Rather, she believed the need for an FBA should be a collaborative decision and offered as a tiered service. Tr. at 363; Exh. 23. Ultimately, INSTRUCTOR opined that REDACTED’s emotional issues could be addressed with deep breaths and positive communication. Tr. at 362.

By the spring 2018, the child’s emotional distress was frequently too overwhelming to manage within the classroom. At these times, REDACTED would be brought to the social worker for more intense services. Tr. at 169-170. Eventually, REDACTED’s need for Social Worker’ assistance intensified and a triage system was developed for the child so that he might “rate” his own level of need and spend less time outside the classroom. Tr. at 173. Simultaneously, a behavior chart was formulated, the purpose of which was to direct REDACTED to more constructive and less aggressive behaviors when anxious. Tr. at 173; Exh. 23.

Notwithstanding these interventions, REDACTED’s “multi-facetted” REDACTED escalated and the child would express concern throughout the day about transitions, new materials and social interactions with peers during unstructured periods. Tr. at 294-297, 311-312. In addition, the child’s REDACTED levels were exacerbated by fire drills and bus safety drills, such that REDACTED required prior notice when these events were scheduled. Beyond this, a new area of REDACTED now focused on transportation home. Tr. at 359-360. On a social-emotional level, REDACTED’s social-emotional skills had deteriorated and he now experienced frequent peer confrontations. Nevertheless, despite the peer disputes and altercations, INSTRUCTOR described a child who was well-liked and enjoyed being with his friends. Tr. at 354. While there was one child in the classroom with whom REDACTED had a “love-hate” relationship, the witness indicated that the child was not isolated by his peers and generally enjoyed recess and unstructured periods during the day. Tr. at 354-356.

Although the witness acknowledged, on cross-examination, that REDACTED experienced troubled interactions with multiple students, she observed that “it was typical of average nine-year-olds and ten-year olds to have conflicts with friends or with their peers and you have to let them conflict resolution (sic) and figure it out. That is how we learn to grow as human beings.” Tr. at 383. Beyond this, the witness maintained that much of REDACTED’s REDACTED centered around events at home, transferring to a new school and leaving old friends. Tr. at 363. As the spring of 2018 unfolded, the child appeared sad and did not want to remain in school, a situation INSTRUCTOR attributed to REDACTED’s sibling’s visit from out of town. Tr. at 369. Nevertheless, she was aware that REDACTED was exhibiting increasingly school phobic behaviors and was perseverating daily about how he would get home at the end of the day. Tr. at 315-316; 379-380.

By May 1, 2018, REDACTED’s need for social-emotional support from the social worker occurred so frequently that a “pass and positive problem-solving” chart was implemented. In this way, personnel could monitor REDACTED’s needs for emotional support and the child would be encouraged to resolve issues independently. Tr. at 307-311. Exh. 23. The witness acknowledged that much of REDACTED’s social dysfunction resulted from his misperceptions and misinterpretations of other’s behavior. As the child was often unable to read social cues, dysfunctional social interactions would ensue. Nevertheless, the witness again insisted that these negative occurrences and playground altercations did not exert an impact upon REDACTED’s ability to access the academic curriculum. She testified, “We would address the situation and then we would get back to work once everything was settled.” Tr. at 311.

Although encouraged to resolve social issues independently and maturely, REDACTED was unable to do so. Eventually, REDACTED was involved in a disciplinary situation which spiraled out of control into a DASA complaint and led to a traumatic incident with other students, teachers and the principal. Tr. at 313-31; 367-369. As a result of this event and others, REDACTED began to somaticize his REDACTED through high blood pressure and heart palpitations. Consequently, the child was referred to a cardiologist and ordered to wear a Holter monitor. When no underlying physiological basis for REDACTED’s palpitations was determined, the child’s REDACTED medications were modified. Tr. at 328-329.

Ultimately, the witness did not recall any incident which involved physicality nor did she recall a DASA^[5] complaint, nor did she recall an incident in which REDACTED was sitting in the hallway, too frightened to come into class. She was aware, however, that REDACTED was engaging in daily school refusals with associated fears and phobias but did not recall whether attendance issues were present during the 2017-2018 school year. Tr. at 316, 323, 341. In response, REDACTED’s emotional issues were now addressed through a “pass and problem-solving chart” as the conduct of an FBA was still deemed unnecessary.

Finally, the witness testified that she was unaware that, during her maternity leave, the school had implemented a policy in which academic demands would be removed if they caused REDACTED’s REDACTED to flare. Tr. at 262. This was not a protocol to which INSTRUCTOR adhered when she returned in April 2018. Rather, with regard to work-related stress, INSTRUCTOR indicated that she would “take a few steps back,” by breaking the material into more manageable pieces, using a checklist and providing emotional support to reduce his REDACTED and eliminate negative self-talk. Tr. at 351, 353. By now and as a result of REDACTED’s brittle emotional status, the child was furnished with an open pass to the District social worker in addition to unlimited bathroom access as Tr. at 299.

As REDACTED’s social-emotional status deteriorated, INSTRUCTOR described an intense level of contact with REDACTED’s mother, contact which was both collaborative and cooperative throughout the year. As the witness’ own child had recently been diagnosed with REDACTED and an REDACTED disorder, she and the Parent shared information and insights which provided greater understanding into REDACTED’s classroom performance. As a result, INSTRUCTOR frequently availed herself of unstructured morning time to sit with REDACTED and “work on anything he is feeling or any pre-teaching.” Tr. at 164-165.

On May 8, 2018 and June 13, 2018 INSTRUCTOR participated in REDACTED’s annual review for the 2018-2019 school year as his special education teacher. As such, the witness provided the CSE with REDACTED’s present levels of performance in reading, writing and math. Exhs. 24, 28. In particular, the witness observed that the child struggled with organizing his thoughts and required graphic organizers to facilitate recall and context. More specifically, INSTRUCTOR referenced Psychologist’s REDACTED indicating that while decoding progress was evident, REDACTED’s comprehension skills remained weak. Aligned with Psychologist’s findings, the Parent noted that much of her son’s improvement was not appearing at home. Tr. at 190.

In addition to the academic and neuropsychological assessments, an assistive technology evaluation was provided. Exh. 22. This had been performed in response to the Parents’ concerns about REDACTED’s handwriting. Although INSTRUCTOR indicated that “there wasn’t a major concern with his handwriting” in her classroom, the District’s evaluator noted, inter alia, “difficulty with letter formation,” weakness in fine motor integration, letter reversals and capital/lower case confusion. Tr. at 337; Exh. 22 at 7. By way of explanation, INSTRUCTOR indicated that demands in the Assistive Technology assessment required multi-step REDACTED, a weak skill set which compromised REDACTED’s test performance. Tr. at 338-339.

The witness indicated that the CSE discussion was collaborative and that the entire Committee worked together on developing REDACTED’s current levels of performance and goals. In furtherance thereof, a decoding goal was developed as were goals addressing the mechanics of writing. Although the witness indicated progress had been made, REDACTED continued to struggle with formulating sentences and employing punctuation signals. Tr. at 369. Ultimately, it was anticipated that REDACTED’s emergent skills in paragraph writing would translate into a cogent three paragraph essay and a writing goal for this was developed. Similarly, a math goal was created, addressing two-step word problems and the language inherent in these operations. She noted that the class had been furnished with a visual checklist of different cues which would facilitate the identification of the correct mathematical operation, a multistep approach which was helpful to her students. This was particularly useful to REDACTED who became anxious when asked to perform mathematical word problems. Tr. at 202, 346-347, 370-372; Exh. 24 at 12.

Emotionally, the child continued to struggle with self-confidence and was easily discouraged when new material was presented. In response, a five-minute wait time was mandated, to ensure an adequate opportunity for REDACTED to familiarize himself with a novel task and determine for himself whether he could address it independently. Tr. at 205; Exh. 24 at 11. Additional goals prepared by Social Worker addressed the technique of reframing and self-awareness.

Reviewing the accommodations and modifications within the IEPs, INSTRUCTOR noted that REDACTED required advanced warning of transitions throughout the day as a means of managing his REDACTED. Exh. 28 at 13. Similarly, REDACTED required frequent focusing, redirection, prompts, motor breaks, unlimited access to the bathroom, seating arrangements, wait time and a plethora of strategies to address his REDACTED, learning and processing disorders. This included, inter alia, the use of white space on the written page, repeated practice, and the use of re-tells to reinforce the processing of information. Tr. at 200-209. REDACTED was furnished with a copy of the homework on a daily basis and pre-taught new vocabulary words or step-by step processes as needed. Recommendations for assistive technology included an FM unit, laptop, speech to text headset and digital access to various reading guides and strategies to compensate for REDACTED’s deficits. The witness indicated that this had been recommended through the assistive technology assessment and to the best of her knowledge, REDACTED availed himself of many of these recommendation. She did not, however, recall REDACTED’s use of the FM unit.

As a result of the CSE’s deliberations, an ICT class was recommended for REDACTED As REDACTED had been “very successful” in fourth grade, she believed it would be detrimental to recommend a self-contained class for the child. INSTRUCTOR testified, “The REDACTED that left me at the end of fourth grade was one-hundred percent capable of working in an ICT classroom” and was “thriving.” Tr. at 198-199. In furtherance thereof, she opined that ICT would provide the peer modeling and social interaction from which REDACTED would benefit.

On June 12, 2019 ^[6] INSTRUCTOR again participated as the in a CSE convene for REDACTED Exh. 31. At this time, REDACTED had spent the prior year at Private School. The witness indicated that the private school had participated remotely, describing their program and goals for REDACTED In addition to Private School’s participation, the Neuropsychological Evaluation performed by Psychologist was presented. Exh. 30. With regard to REDACTED emotional status, personnel from Private School indicated that REDACTED frequently came to school dysregulated and upset. As a result, his teachers would address the child’s emotional status before attending to IEP goals. Tr. at 216. Referencing many of the goals achieved by REDACTED at Private School, the witness expressed surprise that these skills were even being addressed as the child had achieved them while in District. Tr. at 219-221. Specifically, she indicated that REDACTED had been able to write all lower-case letters and, while they were not “perfect,” they were legible. Tr. at 220. She was additionally surprised that REDACTED would need to inform his teachers as to when he was “ready” to complete a task, an issue she did not recall in fourth grade. Tr. at 220-221.

Reviewing the child’s 2019-2020 IEP goals, the witness indicated that all of these could be addressed within the context of an ICT class. Tr. at 225. Specifically, she indicated that while REDACTED’s decoding goal was appropriate, the child should have met the comprehension goal earlier in fifth grade. Tr. at 228. Similarly, she testified that REDACTED had been able to solve calculations involving subtraction in fourth grade and that this goal reflected a regression in the student’s abilities. Tr. at 229. Referencing the CSE’s recommendation for reading services, the witness testified, “To be honest, it sounded like he made regression. He wasn’t reading at a level Q when he left in the fourth grade, therefore I felt as though he required additional support in that area.” Tr. at 220, 229. In furtherance thereof, INSTRUCTOR indicated that the Teacher Progress Summary presented by Private School referenced many skills previously achieved during REDACTED’s fourth-grade year in District. Tr. at 219-223; Exh. 31 at 5. Nevertheless, given the child’s skills and current levels of performance at the time of the CSE proceedings, INSTRUCTOR testified that the IEP was appropriate and capable of implementation within District. Tr. at 245. In contrast, the child’s teacher opined that the three-child classroom at Private School was inappropriate for REDACTED as there were no typically developing role models^[7] and limited opportunities to collaborate and socialize with classmates. Tr. at 223. Consequently, she continued to recommend the District’s ICT paradigm, a program in which the child had been making progress within District a year earlier.

REDACTED additionally testified on behalf of the District where she previously served as a speech and language therapist for 35 years. She last worked with REDACTED during the 2016-2017 school year. She did not recall testing the child but did rely upon Psychologist’s neuropsychological report. She described REDACTED as a child with word retrieval and grammatical deficits. Tr. at 392. Addressing these issues, Ms. REDACTED testified that she utilized the goals articulated in the 2016-2017 IEP and based upon data collection during the 2016-2017 school year, she believed REDACTED had progressed. During the 2017-2018 school year, the child remained part of her roster of speech and language students and the witness continued to address REDACTED’s word retrieval and grammatical usage. Tr. at 399-400. Again, the witness indicated that she maintained data on REDACTED’s progress and, based upon this information, she opined that REDACTED had advanced with his speech goals. Tr. at 408.

On May 8, 2018 and June 13, 2018, the witness participated in CSE convenes for REDACTED At this time, a neuropsychological assessment dated December 26, 2017 and conducted by Psychologist REDACTED, Psy.D. was presented along with a new REDACTED evaluation. Exhs. 20, 21. Based upon the CELF testing,^[8] it was determined that a goal addressing semantic relationships was warranted and this, in fact, was incorporated into the IEP. Exh. 20 at 4. Likewise, a review of the REDACTED evaluation indicated the presence of a severe auditory comprehension deficit. Exh. 21 at 6. A goal addressing stimulus/noise discrimination was additionally developed in response to audiological findings indicating difficulty with figure-ground listening and temporal integration, Exhs. 21; Exh. 28 at 12. Ms. REDACTED testified that she believed REDACTED’s was a credible source of evaluative material and consequently adopted some of Psychologist’s suggestions. Tr. at 442. The witness did not attend the June 12, 2019 CSE meeting nor did she prepare the IEP speech goals. Exh. 31. However, she indicated that while there were no goals addressing grammar, word retrieval continued to be an issue.

In sum, Ms. REDACTED testified that REDACTED was comfortable in her small group speech classes and that she did not observe any of the REDACTED which had been described by Committee members. She testified that, within the context of her speech groups, “I felt like I was seeing a different child.” Tr. at 431-432. Many of REDACTED’s processing and social issues were not apparent in her sessions as speech and language therapy was offered in an intimate and environmentally controlled setting. Tr. at 447-448. However, Ms. REDACTED acknowledged that the functional abilities of a student with noise sensitivities, as reflected by Dr. REDACTED’s REDACTED Evaluation, would definitely be impacted within a large, noisy environment and that an FM unit would be recommended for such a student. Tr. at 449-450.

In sum, the witness indicated that although the CSE had adopted many of Psychologist’s and Dr. REDACTED’s findings, she could not assert whether Dr. REDACTED’s REDACTED scores on the Oral Passage Understanding Scale (hereinafter “OPUS”) were more accurate than those yielded by Psychologist on the CELF-V as she was not familiar with the OPUS. While the OPUS scores fell at the 5th percentile and were exceedingly low, she noted that comprehension scores on the CELF-V were not nearly as poor. Although REDACTED tested at the 16th percentile on the CELF-V, she indicated that speech professionals are more concerned about the scaled scores. Thus, REDACTED’s scaled score of 7 on the CELF V would be considered slightly below the norm. Tr. at 460-461; Exh. 20 at 4.

Social Worker^[9] additionally testified on behalf of the District. She has been employed at the District for five years as a school social worker. Tr. at 471. In her capacity as school social worker, Social Worker provides both mandated and non-mandated social-emotional support. Beginning in second grade and continuing throughout third, Ms. Social Worker provided mandated social work services to REDACTED. She described REDACTED as a “social kid” who had a lot of friendships in school and was very well liked. Tr. at 474.

Ms. Social Worker, too, had little recall of many specifics involving REDACTED She did not recall the child’s medication regimen and had absolutely no recollection of REDACTED’s use of a Holter monitory secondary to an accelerated heart rate. Likewise, Ms. Social Worker did not recall REDACTED’s use of a twice daily “calling hour” so that REDACTED might hear his mother’s voice and cope with multiple anxieties. She did not recall various incidents in which REDACTED was too frightened to enter the classroom. She did not recall a morning protocol in which the Parent remained downstairs until receiving Ms. Social Worker’s call green-lighting REDACTED’s departure. She did not recall a lunchroom incident with REDACTED that ultimately required her intervention and did not recall discussions with REDACTED about excessive visits to the nurse. Tr. at 539-541, 548- 553. She did not recall any discussion in which the Parent indicated that the child’s cardiac issues were REDACTED related. While Ms. Social Worker did, in fact, recall the DASA incident, she could not recall the specifics and indicated, “I don’t recall him having a lot of issues.” Tr. at 554.

Although REDACTED experienced social conflicts during the year, Ms. Social Worker indicated that these were easily resolved. She was, however, aware that the child experienced various anxieties and insecurities related to transitions, academics and social interactions during the course of the day. Academically, REDACTED was easily stressed when verbal prompting was necessary to cue him to the correct response. As the child was easily embarrassed by this public affirmation of his academic struggles, a protocol with his teachers was developed in which a cube on his desk would signal REDACTED’s need for assistance. In this way, REDACTED would not be openly identified and shamed by his academic needs. Rather, he could use the cube to discretely signal his need for assistance. Tr. at 481; Exh. 11.

As the year proceeded the clinician testified there were fewer issues with transitions and REDACTED was far more comfortable within the school environment. Tr. at 476. Nevertheless, among the transitions with which REDACTED continued to struggle was the morning transition into school and his classroom. On approximately five occasions, Ms. Social Worker indicated that the Parent would alert her to the problem and the social worker would sit with the child until he was ready to enter the classroom. Tr. at 480.

Nevertheless, despite having “a very positive” third grade year, Ms. Social Worker acknowledged that REDACTED’s counseling mandate increased for the 2018-2019 school year. Tr. at 483, 529. Similarly, her counseling goals largely addressed REDACTED’s troubled peer relationships although Ms. Social Worker insisted REDACTED was well-liked and had many friends. Although ostensibly these difficulties occurred within unstructured settings, Ms. Social Worker observed that they were now happening in the classroom as well. Tr. at 532.

In the spring of 2018, Ms. Social Worker testified that REDACTED began to experience more “challenges.” Tr. at 484. Acknowledging that REDACTED was now experiencing “significant conflicts” with the other students, she nevertheless dismissed this as a “behavioral phase.” Tr. at 538-539. Similarly, in describing REDACTED’s feelings of being bullied, she testified, “There were moments that he may have felt that way, but I don’t recall that being a continuous issue for him. Children were bullying a lot.” She had no recollection of presenting a classroom-wide video on bullying but indicated this was a common push-in lesson for her. Tr. at 542-544.

Finally, while personnel believed REDACTED’s REDACTED was a response to his mother’s hospitalization and a brother visiting from out of town, the reality is that REDACTED was hospitalized the prior year and REDACTED’s brother was home for two weeks. These events did not consume the better part of the 2017-2018 school year. Likewise, REDACTED did not begin visiting new schools until June 2018. Tr. at 525-528.

REDACTED additionally testified on behalf of the District. She is employed by the District as its ELA Chairperson. In this capacity, she supervises and evaluates reading curriculum for the entire District, assists with RTIs^[10] and facilitates the identification of students with reading deficits and the appropriate educational intervention. Tr. at 705. She has never instructed, observed nor evaluated REDACTED, and based her comments upon records provided by REDACTED Reading INSTRUCTOR, the District’s reading teacher. Tr. at 711-712. She was, additionally familiar with REDACTED, having been approached by REDACTED during the 2017-2018 school year regarding REDACTED’s academic progress and difficulty decoding.

As a result of her discussion with the Parent, REDACTED’s eligibility for AIS was evaluated in October or November 2018 and it was determined that the child would receive pull-out reading services, provided by the District’s reading specialist. The child’s eligibility was based upon a 2-level performance delay on the Fountas and Pinnell benchREDACTED, a level below the child’s fourth grade peers.^[11] Although the child commenced the AIS intervention in October 2017, REDACTED expressed concern about the scheduling of her son’s AIS reading services as these pull-outs would largely occur during the independent reading period in class. Tr. at 749.

Ms. REDACTED noted that REDACTED Reading INSTRUCTOR, a specialized reading instructor, provided AIS services to REDACTED She, too, affirmed that AIS is a building level program which is not a mandated related service articulated within the child’s IEP. Tr. at 723. Ms. REDACTED further noted that, while it may be assumed that a child currently receiving AIS will continue to receive these services during the upcoming year, a formal eligibility determination does not occur until evaluations are completed the following school year. Tr. at 739-741. As the child’s fourth grade year continued, REDACTED progressed from level N to level Q but remained two levels behind his typically developing peers. Tr. at 715. In furtherance thereof, Ms. REDACTED could not comment on whether REDACTED had achieved other fourth-grade literacy skills beyond the mechanics of reading. Tr. at 748.

The Parents’ Case and Summary of Witness Testimony

Therapist, Ph.D. testified as lead witness on behalf of the Parents. Dr. Therapist has a doctorate in psychology and is additionally a licensed clinical social worker. She is the presently Clinical Director of the REDACTED Wellness Center. From July 2014 to September 2018, Dr. Therapist rendered clinical services to REDACTED for the purpose of addressing his anxieties at home and in school.

In the fall of 2016, Dr. Therapist recalled collaborating with District personnel regarding REDACTED’s troubled interactions with his peers and his perception that other children did not like him. She noted that the child had difficulty articulating the nature of his social struggles as well as understanding the actions of others as well as himself. All of this was exacerbated by the child’s language deficits, and, as a result, she frequently asked REDACTED to draw pictures as a way of expressing his feelings. Tr. at 788, 861-862.

In January 2017, District Social Worker^[12] contacted Dr. Therapist to discuss some of REDACTED’s social difficulties. At this time, REDACTED was complaining that children were bullying him while other children were complaining about REDACTED’s behavior. The witness indicated that both she and Ms. Social Worker concurred that REDACTED was struggling socially and appeared withdrawn and anxious in his social interactions. Tr. at 789. By February 2017, REDACTED’s social struggles had become an ongoing topic of discussion. REDACTED’s inability to understand social nuance in context with his own behavior had begun to snowball and by March 2017, the therapist learned that “REDACTED cries and begs not to go to school.” Tr. at 797. Nevertheless, the child could not connect his own aggressive actions with the social consequences which ensued.

As the year continued, REDACTED became more verbal about expressing his frustration, a strategy he believed school personnel had recommended. As the child was unable to moderate and/or manage his ability to articulate feelings appropriately, however, REDACTED’s classmates frequently viewed his behavior as aggression. In contrast, the child felt victimized by both classmates and personnel. By this time, REDACTED’s socially distant behavior had evolved into self-protective measures which were perceived as the acts of a bully. Tr. at 799. By May 2017, REDACTED was refusing to attend school. The child presented as sad, overwhelmed and fearful. Class had become uncomfortable and frightening.

In the early fall of REDACTED’s 2017-2018 fourth grade year, the child began to express feelings of hopelessness and frustration about his peer relationships. Dr. Therapist noted that REDACTED’s social skills were very delayed and he continued to struggle with appropriate peer interactions. The child reported that he was excluded by his classmates during recess and that the number of children who had been kind to him was dwindling. REDACTED was struggling desperately to find friends and began to bring snacks and prizes to school in an effort to bribe children into becoming his friend. Tr. at 800-801, 836. As the social skills of his peers evolved into more sophisticated relationships, Dr. Therapist testified that the child lacked the insight and speech necessary to develop more mature relationships, a gap which was only widening. Tr. at 801, 817 The witness testified that she had read the neuropsychological evaluations prepared for REDACTED and opined that their findings were consistent with her observations during therapy. Many of the child’s cognitive, perceptual and expressive deficits were clearly impairing REDACTED’s ability to function appropriately within a social setting. Tr. at 802. As a result, and during this time, Dr. Therapist recalled several meetings with school personnel. Although well-intentioned, she opined that the District was addressing REDACTED’s issues reactively, rather than developing proactive coping strategies to reduce the child’s feelings of sadness and frustration. Tr. at 802-803. While the witness agreed that District personnel were “loving and caring” toward REDACTED, the witness opined that personnel did not have the tools with which to help the child.

In furtherance thereof, she believed ongoing social skills classes with opportunities to practice new behaviors would have been beneficial. Likewise, Dr. Therapist believed an enriched pupil-personnel ratio would have facilitated more frequent interventions in real time, thus supporting and redirecting the child as dysfunctional social interactions occurred. She testified, “I did not perceive that the school personnel had the specific training to understand the nuanced nature of REDACTED’s disabilities and how they were impacting him on the playground. They didn’t have the resources. They didn’t have enough staff.” Tr. at 805. In furtherance thereof, Dr. Therapist opined that REDACTED needed a more specialized and intimate school setting which could address the child’s inability to read social cues, including guided playground experiences and small group games in which therapeutic “debriefing” could occur. She noted that a smaller class would limit the opportunity for dysfunctional social interactions and create a more manageable environment for the student.

On April 24, 2018, REDACTED was involved in a traumatic altercation at school. In the course of a playground event, REDACTED claimed to be recording other students and their statements. The incident escalated to administrative personnel as REDACTED believed the focus of the event was his purported taping, rather than the events leading to the dispute. REDACTED felt singularly blamed for the entire event and his emotional status deteriorated dramatically. Tr. at 807-808. At this point, Dr. Therapist maintained that the child’s social skills training required a more intense curriculum than what the District could offer. Tr. at 806, 809. Simply, REDACTED did not read social cues appropriately. He simply did not have the language to diffuse a misunderstanding nor could he describe his feelings appropriately. Likewise, the child had little insight into his own behavior. Under these circumstances, Dr. Therapist testified that REDACTED’s REDACTED and depression were quickly spiraling out of control such that REDACTED had now developed behavioral tics, heart palpitations and a range of psychosomatic illnesses culminating in school refusals. Tr. at 810. Dr. Therapist clearly believed, at this time, that the child’s emotional status and the somatization of his stress were interfering with his ability to access an education. Referencing her notes of April 30, 2018, Dr. Therapist’s testified regarding her entry, to wit: “REDACTED begged Ms. Social Worker [REDACTED] to let him go home. Cries in office.”

By June 2018, Dr. Therapist indicated that her therapeutic goal for REDACTED was “just to help him survive until the end of June.” Tr. at 812. Indeed, as early spring 2018, REDACTED was already nervous about returning to District after the summer break. Tr. at 875. The clinician testified that REDACTED felt very unsafe in school, unprotected by personnel, emotionally defeated and “at the peak of what he could handle on his own.” Tr. at 811. As the school year elapsed, the clinician believed REDACTED was deteriorating, becoming more and more school resistant and increasingly depressed and hopeless, a conclusion based upon REDACTED, his mother’s statements and those of school personnel. Tr. at 847. Indeed, while Dr. Therapist did not recall the child’s teachers specifically stating that REDACTED could not function within the classroom, their descriptions reflected a child who was struggling within the classroom and “crying out for help.” Tr. at 812, 848. Although he had begun the school year optimistic and open to problem solving strategies and social skills techniques, the child had become so defeated and hopeless that targeted intervention was not possible. She noted that REDACTED now required an “unlimited pass” to the school counselor just to get him through the day.

On cross-examination, the witness noted that the number of counseling sessions, either individual or group, was not as important as the context in which services were rendered. In furtherance thereof, Dr. Therapist clarified that the classroom size, social/ academic curriculum and lack of interaction between staff and REDACTED during unstructured times established an unmanageable environment for the child. Tr. at 822-830. Specifically, REDACTED required a more intimate pupil: personnel ratio along with instructors knowledgeable in the area of social-emotional dysfunction. As REDACTED was unable to read social cues, the student additionally required detailed intervention to facilitate appropriate interpretations of social interactions. This would include coaching, supervision and practice within unstructured social settings. Although Social Worker was, in fact, providing the child with social strategies, she did so within the structured confines of her office. In this manner, REDACTED was expected to generalize skills to the playground, a capability he did not have. Tr. at 829. Beyond the District’s failure to provide real-time opportunities for REDACTED to practice new social strategies, Dr. Therapist noted that Ms. Social Worker’ interventions were reactive in nature. REDACTED was not learning how to prospectively avoid negative social interactions. Rather, he was learning how to cope once the damage had been done. Tr. at 831.

Ultimately, the witness indicated that, despite the cooperation of District personnel, the structure of REDACTED’s day within a large public school militated against success. She noted, “The challenges on the playground were so immense that the strategies did not fully address what needed to be added for REDACTED” Tr. at 833-834. For example, when advised to contact an adult when a social issue arose, District personnel were not always available. Alternatively, when personnel were present to hear a dispute, REDACTED was labeled as a “tattletale.” Tr. at 833-834. The witness indicated that many strategies were ineffective as REDACTED was not “in an environment where social and emotional skill building was a primary goal.” Tr. at 835.

Although the witness had never observed REDACTED in school, she noted that REDACTED’s reports were consistent with Ms. Social Worker’ observations which were then aligned with what she had observed in counseling sessions. Tr. at 836. She agreed that REDACTED experienced bad days as well as good days and REDACTED’s perception of social interactions was not always accurate. This, in fact, was one of REDACTED’s problems. Nevertheless, the child’s therapist testified that REDACTED’s accounts of bullying were always truthful. The witness indicated that she collaborated with District personnel on a day-to-day basis and, in this manner, Dr. Therapist was able to corroborate REDACTED’s allegations. Tr. at 846-847.

REDACTED additionally testified on behalf of the Parent. Ms. REDACTED is Assistant Head of School at Private School^[13]. Prior to serving as Assistant Head, she was employed by Private School as a Focus teacher for 17 years. As Assistant Head of School, her responsibilities include hiring, training, developing curriculum, scheduling and serving on the admissions team. Tr. at 902-903. She interacts daily with REDACTED on the Long Island campus. As the Long Island campus of Private School was only recently opened, there was a maximum of 16 students in the school during the 2018-2019 school year. Although there is no psychologist on staff, a licensed social worker and licensed guidance counselor provided social-skills training and support. Formal weekly team meetings are held although, given the small school size, teachers can easily share information and collaborate with each other more frequently on an as-needed basis.

Ms. REDACTED noted that Private School is a small, college preparatory school which is designed to address the needs of children with learning disabilities. There is no foreign language instruction. Instead, ELA skills are addressed twice daily. The School currently serves grades three through eleven. The witness described the QSIL^[14] system which forms the foundation of the Private School program, observing that the development of QSIL behaviors was the keystone of successful independent learning. Such behaviors include resilience, problem-solving skills, self-awareness, self-advocacy and self-reflection. In this manner, students, parents and personnel complete on-going assessments which provide feed-back and self-awareness regarding student progress. Tr. at 906.

The witness noted that the school generally services children with language-based learning disabilities, including reading disorders. While some children may demonstrate coding issues, others have processing and comprehension deficits. Executive functioning difficulties among its student population are common as are attentional deficits. Many students demonstrate several learning deficits. Students are grouped by learning profile and skill level. A secondary class assignment consideration addresses the child’s social-emotional needs. Tr. at 959.

A significant component of the Private School program is the Focus program. This is a one-to-one period which meets daily. During this period, academic material is reviewed with an eye toward individualizing the student’s particular needs and learning style. The Focus teacher serves as coach, advocate and intermediary between staff and family. When necessary, social-emotional counseling is a component of the Focus period. Once at Private School, REDACTED instructor was assigned to REDACTED as his Focus teacher. It was the Focus teacher who facilitated REDACTED’s transition to Private School. As Ms. instructor is a licensed and certified speech and language therapist, she was able to furnish REDACTED with a broad range of services, including academic, speech and social-emotional intervention. Tr. at 954, 961.

Although REDACTED receives reading instruction during Focus class, he also participates in a daily ELA class in addition to a language skills class. She noted, moreover, that REDACTED’s literature class is taught by an individual who is specifically trained in the Preventing Academic Failure protocol. As the child is grouped with students of similar needs, many of REDACTED’s reading deficits are addressed throughout the day. In this manner, content area instruction can be furnished with an eye toward decoding skills and key words. Tr. at 961-962. Beyond literacy instruction, REDACTED receives math instruction from a licensed special educator who had retired as the Director of Special Education for a local Long Island school district.

Although Ms. REDACTED did not view Private School as a therapeutic placement, she noted that many of their students present with histories of REDACTED, poor self-esteem and school resistance as a result of negative school experiences. Consequently, personnel are sensitized to the social-emotional component of learning. In this manner, academic pacing, scaffolding and chunking of materials is designed to prevent children from feeling overwhelmed and insecure. Beyond this, as a “point person,” the Focus teacher provides social-emotional and supportive counseling so that the child feels he has an advocate and defender in school. During the 2018-2019 and 2019-2020 school years, REDACTED additionally participated in a weekly small group social skills group, a supportive class led by his Focus teacher and the school counselor. Tr. at 931.

As REDACTED became more comfortable at Private School, Ms. REDACTED testified that he demonstrated less school-related REDACTED and resistance to academic tasks. For example, at the beginning of the 2018-2019 school year, REDACTED frequently complained of various psychosomatic pains when overwhelmed or confronted with academic challenges. When anxious, he would ask to speak with his mother, front desk receptionist or his Focus teacher. As this avoidance behavior decreased, Ms. REDACTED attributed this to the relationships REDACTED had formed with his teachers and his confidence that they would support his academic needs. Similarly, the witness opined that REDACTED had a greater level of self-awareness and was able to engage in constructive self-talk. Surrounded by similarly profiled students, REDACTED felt comfortable with his academic challenges and was not constantly comparing himself to stronger students.

In September 2018, REDACTED began fifth grade at Private School where he has since remained. During academic subjects, the child was initially placed in a class consisting of three students ranging from grades four through six. Although REDACTED was paired with two girls, he was later assigned to a history class with two boys. Nevertheless, for art and physical education, REDACTED was placed in a much larger class which combined several smaller classes and included a greater mix of sexes. Tr. at 1045. During the 2018-2019 school year, school enrollment commenced at 12 and eventually grew to 16.

During the 2019-2020 school year, the child’s class grew to six and school enrollment increased. Tr. at 923-924. REDACTED now had greater opportunities to socialize and learn collaboratively, especially when participating in non-content area subjects. Describing the supportive nature of Private School and REDACTED’s social-emotional issues, Ms. REDACTED testified, “... I would imagine that he would have tremendous difficulty [in a larger academic class] knowing what I know of him and knowing how he functions in our environment.” Tr. at 1099.

However, in the intimate setting provided by Private School, the witness noted that the child had progressed with reading decoding and encoding. A third significant area of development has been within the realm of social-emotional growth. REDACTED now has a greater understanding of his strengths and weaknesses as a learner. Although he will persist through assignments, he is now willing to seek out support. Because others in his class are similarly profiled, the student is emotionally comfortable with his peers. The witness testified that, by the end of the year, REDACTED had passed all of his classes. Tr. at 919-920. During the 2019-2010 school year, REDACTED continued his enrollment at Private School where he again passed all of his classes and continued his academic and social-emotional progress. Although REDACTED continued to experience social-emotional issues, disciplinary problems did not occur. In sum, the witness testified that REDACTED had been placed appropriately at Private School for both the 2018-2019 and 2019-2020 school years.

REDACTED instructor testified on behalf of the Parents. She has been the child’s Focus teacher since the 2018-2019 school year. She additionally serves as the Director of Admissions for Private School on Long Island. She is certified by New York State in speech pathology. She is additionally certified as an Orton-Gillingham practitioner. As REDACTED’s Focus teacher, Ms. instructor serves as daily instructor, case manager and parent liaison. Both skills remediation and supportive counseling may be offered during the Focus period. Tr. at 973. Ms. instructor testified, “They [the Focus teachers] act as the case manager so they take the communication between the parents and the students and the rest of the team. There is a lot of communication that goes on with the family and Focus instructor. They manage the child’s whole day.” Ibid. Beyond this, as a licensed speech therapist and certified Orton-Gillingham instructor, Ms. instructor indicated that speech and reading instruction were provided to REDACTED throughout the day, rather than as pull-out related services. Tr. at 1035. Although weekly updates are provided to the Parents, less formal communication may occur on a more frequent basis. When indicated, communication with outside professionals (psychiatrists, therapists etc.) occurs.

The witness described a sweet and sensitive child who struggled during the admissions interview and began to cry. When assessed, REDACTED gave up easily and answered impulsively, insecure about his answers. As a result of REDACTED’s lack of confidence and defeatism, REDACTED demonstrated poor stamina during task performance, worked impulsively, looked for shortcuts and self-regulated poorly. Although REDACTED’s primary issues involved learning disabilities, secondary issues included REDACTED, task avoidance and resistance. Upon admission, she described a child who was so “damaged” that learning became a secondary piece of his day. Tr. at 1031. Nevertheless, she noted that REDACTED was not a “behavioral” student who required a therapeutic environment. Rather, he demonstrated various learning disabilities which were exacerbated by his fragile emotional status. Tr. at 981-982, 985. Specifically, REDACTED demonstrated poor decoding skills in addition to deficits in short term visual memory and processing. As a result, Ms. instructor indicated that tasks requiring an element of fluency were difficult for the child. Tr. at 983. Given REDACTED’s profile, she believed both the emotional and academic aspects of REDACTED’s performance would need to be addressed.

At the outset, Ms. instructor testified that REDACTED experienced a difficult transition to Private School. She noted that the child was very needy and wanted one-on-one attention throughout the day, a situation which created difficulties with other classmates. REDACTED was nervous about the School’s expectations, insisted upon comparing himself negatively to others and minimized his own progress. The child frequently cried during class, perseverated about calling his mother and often wanted to leave school early. During other content area classes, REDACTED would attempt to leave the room and seek out Ms. instructor, a strategy REDACTED had learned from the District’s open-door policy with Ms. Social Worker. Tr. at 988-989. Consequently, personnel directed much of their intervention towards ending REDACTED’s fear of failing/school avoidance cycle by supporting the development of strategies for self-regulation within the classroom. The witness indicated that providing a safe learning environment was a precursor to REDACTED’s ability to function appropriately within the school environment. Tr. at 989-990. Despite a rocky beginning, by spring 2019, much of REDACTED’s REDACTED had resolved and task avoidant behaviors were far less prominent. Tr. at 991.

The witness noted that although REDACTED was a social child, he initially struggled with developing and maintaining friendships. Similarly, REDACTED would resist academic tasks and leave the classroom for frequent “bathroom” breaks. She noted, for example, that within minutes of a successful playground experience, REDACTED would deteriorate emotionally and psychosomatically if academic demands were anticipated. As a result, a strategy was developed to assist the child with identifying the extent and nature of his emotional duress. Using color-coded charts, zones and sentence starters, REDACTED was provided with the language inherent in articulating his emotions. While reinforcing the student’s self-awareness and ability to reframe and replace negative feelings, the child was additionally offered a range of breathing techniques along with structured self-talk and calming sensory strategies. Tr. at 997-999.

During the 2018-2019 school year, REDACTED was assigned to a class with two other girls. All shared the same learning profile and social deficits. As the social component of their interactions warranted, the social skills group convened once or more a week if needed. As the year progressed, REDACTED learned to use self-talk and guided relaxation techniques to self-sooth and avoid self-isolating trips to the bathroom to cry. Many emergent social skills, such as perspective taking, problem solving, understanding assumptions and developing collaborative techniques, were practiced throughout the day and in his classes. Tr. at 1055-1057. Eventually, the frequency, duration and intensity of REDACTED’s dysfunctional behaviors receded and REDACTED’s ability to self-regulate was strengthened. Tr. at 1022.

Beyond REDACTED’s emotional pathology, Ms. instructor indicated that the child had both expressive and language deficits, along with an REDACTED issue. Although REDACTED might appear to be attending, it was often unclear whether the child had processed the verbal input. As a result, the witness testified that REDACTED needed frequent check-ins, opportunities to summarize/paraphrase information and sequential terminology to ensure comprehension. REDACTED was additionally trained to utilized active listening strategies as a means of compensating for processing weaknesses. Referencing REDACTED’s written language curriculum, Ms. instructor indicated that the child was working on more complex sentence structure, syntax and grammar, skills which were addressed throughout the day.

Academically, Ms. instructor observed that REDACTED was very responsive to the Orton-Gillingham protocol and, as a result, very motivated to succeed. Using a sensory approach, REDACTED worked on symbol-sound correspondence, short vowels and consonants, eventually progressing to syllables and words. In writing, the witness noted that the child arrived at Private School with letter reversals, confusion with capital and lower-case letters and spelling deficits. Exhs. T, U. As the year ensued, REDACTED became more confident in his skills and began to write full sentences correctly. Tr. at 1007-1015.

During the 2019-2020 school year, REDACTED was placed with three girls and two other boys. Because REDACTED’s emotional issues had resolved significantly, personnel were now able to spend greater amounts of time addressing academic material. REDACTED eventually learned to read all syllable formats and could string together four or five-word syllables together along with prefixes and suffixes. Tr. at 1017. In terms of executive skills, REDACTED was learning to prioritize and filter out irrelevancies from his binder. By utilizing a digital planner, REDACTED was additionally able to follow a work schedule and plan out assignments more efficiently. Tr. at 1020. In reading comprehension, REDACTED learned to seek out key words and self-advocate when needing help. If necessary, a visual cue was offered to reinforce REDACTED’s understanding of content. In this manner, the child was provided with various compensatory strategies in order to accommodate REDACTED deficits. Tr. at 1020-1021. Ms. instructor testified, “We encourage students if you need a five-minute break, ask for it, advocate and come back and be ready to work. He used to take a break and that would be the rest of the day. Just the fact that he is able to stay in class and stay with the concept and still welcome a new challenging concept is amazing.” Tr. at 1023. In sum, the witness opined that REDACTED had made progress during both the 2018-2019 and 2019-2020 school years. Tr. at 1036.

In the spring of 2018, Ms. instructor participated in a CSE convene for REDACTED She noted that several elements of the IEP were concerning to her. This included the unlimited bathroom break provision which she believed engendered further avoidance behavior and helplessness. Instead of addressing REDACTED’s anxieties through reframing and learning how to cope, Ms. instructor opined that the child’s dysfunctional behaviors were inadvertently being reinforced. The witness additionally objected to the discreet manner in which services would be rendered to REDACTED, a scenario which Ms. instructor believed only intensified REDACTED’s sense of shame and embarrassment. Tr. at 1026-1028, 1096-1097. Beyond this, Ms. instructor was concerned about the frequent pull-out services at the expense of academic class time and opportunities to socialize. Finally, the witness expressed concerns about the proposed class size. While she was aware that REDACTED had been assigned to an ICT class with other IEP students, these children might not necessarily match REDACTED’s learning profile. In furtherance thereof, she observed that children with dyslexia or ADD can appear very different and require different strategies. Tr. at 1095. Finally, the witness testified that her role at the CSE convene was to provide information regarding the child’s current levels of performance. She was not there to make recommendations and was not asked for her opinion regarding the nature of services to be provided. Tr. at 1086.

Referencing the District’s 2018-2019 and 2019-2020 IEP goals on cross-examination, Ms. instructor indicated that while some of the goals were similar to those developed by Private School, other goals required scaffolding as they were too difficult for REDACTED at this time. Tr. at 1065-1066. Similarly, the witness opined that a linguistic goal incorporating two elements (such as color and size) was not functional for REDACTED. Other social-emotional goals were adopted in modified form. In contrast, Ms. instructor concurred with the accommodations and modifications articulated within the District’s IEPs. Although Private School does not have an occupational therapist on staff, the Parents had obtained an assistive technology assessment prior to admission. Many of those recommendations were then incorporated into REDACTED’s educational plan. Tr. at 1083.

From March 16, 2020 through the end of the school year, distance learning was initiated due to the COVID -19 pandemic. She noted that REDACTED was successful with the remote format as he was very invested in succeeding academically. Although accommodations were, on occasion, necessary, both student and staff were able to develop a system in which REDACTED’s needs could be met.^[15] Tr. at 1042.

REDACTED additionally testified as the mother of REDACTED The witness participated in the May and June 2018 CSE convenes. At this time, REDACTED recalled Psychologist’s contributions by phone and report, adding that the neuropsychologist had opined that REDACTED’s apparent progress was, in fact, illusory and that, many of REDACTED’s skills remained shaky and inconsistent with grade level expectations. Exh. 20, passim. Moreover, the child’s ongoing REDACTED, frustration and school avoidant behaviors were exacerbating these deficits. As a result of Psychologist’s findings, the Parent requested additional one-to-one reading instruction and a phonics-based reading program. Tr. at 1135-1137. Although the District did not believe REDACTED required one-to-one instruction, the Parent’s long-standing request for a phonics-based reading program^[16] was subsequently introduced into the child’s curriculum. Tr. at 1139.

During the summer of 2018 and prior to the onset of the 2017-2018 school year, the Parent testified that she spoke with INSTRUCTOR to convey her concerns about REDACTED’s upcoming school year. By this time, she had received REDACTED’s ELA scores and was concerned about the lack of reading progress. Although previously advised that REDACTED did not qualify for building level services as a special education student within the ICT class, REDACTED was now deemed eligible. In the fall of 2018, the child began to receive building level, RTI reading instruction. Tr. at 1145-1146.

As REDACTED’s fourth grade 2017-2018 school year ensued, REDACTED testified that the frequency of REDACTED’s school refusals escalated. The witness testified, “Every morning was - a huge, huge scene in my house,” involving tantrums and tears. Ultimately, REDACTED testified that she would bring her son to school by car, a plan initially suggested by District psychologist INSTRUCTOR in second grade following repeated school refusal episodes. As the years progressed, the District’s accommodations for REDACTED’s school phobic behaviors changed as did those of REDACTED’s private therapists. During some years, REDACTED was offered telephone privileges while in other years, the student had unlimited bathroom access and unlimited entrée to the District social worker. Although the Parent’s private therapist, Dr. Therapist, had initially suggested broad access to Ms. Social Worker, this quickly became an avenue by which REDACTED could remove himself from stressful academic demands. Concerned that REDACTED had learned a new avoidance behavior, REDACTED opined that this strategy became little more than a “Band-Aid” masking more substantive emotional issues.

By fourth grade, REDACTED’s school phobic behaviors had become unmanageable and Social Worker agreed that the child would benefit from a separate morning protocol in which she would drive REDACTED to school and her son could avoid the gym. Nevertheless, once at school, REDACTED’s separation REDACTED persisted throughout the day, requiring frequent phone calls and emails from personnel. Tr. at 1149-1151. Beyond school refusals, the child became resistant to completing homework, insisting that he could only complete assignments with the assistance of his teacher. Ultimately, both drop-off and afternoon pick-ups became problematic, with intervening episodes of REDACTED and perseveration during the day. Tr. at 1264-1267.

As the year progressed, REDACTED testified that REDACTED began to experience panic attacks and palpitations during which her son would hyperventilate and appear as though he would faint. Ultimately, the witness indicated that her son did, in fact, faint in school after which she was contacted by the school nurse. Tr. at 1271. Thereafter, REDACTED was evaluated with a Holter monitor and it was determined that REDACTED’s elevated blood pressure and palpitations were stress-related to school as symptomatology was not evident at home. Tr. at 1156-1157.

REDACTED described her son as a social child who desperately wanted to have friends but found it increasingly difficult to manage independently during unstructured social opportunities. She noted that REDACTED did not understand social cues, frequently misinterpreted actions and struggled with the more sophisticated social behaviors expected of a fourth grader. Tr. at 1158-1160. REDACTED’s sensitivity to noise additionally exacerbated his ability to function appropriately during morning arrival time. The large room where students would gather presented sensory challenges to REDACTED who was overwhelmed by the noise and activity. Eventually, an alternative drop-off protocol was developed. Tr. at 1162-1163.

REDACTED’s frustration and defeatism began to peak by the spring of 2018, REDACTED testified that he was no longer bringing work home as an upsetting new policy had been implemented, excusing REDACTED from homework if he believed the assignment was too difficult. Tr. at 1165-1169. Although the Parent was concerned that this approach was only reinforcing REDACTED’s existing avoidance behavior, personnel believed that forcing REDACTED to tackle an assignment for which he was not “emotionally available to learn,” was counter-productive. Tr. at 1181. Beyond this, her son continued to struggle with reading.

Nevertheless, at the 2019-2020 CSE meeting, the witness testified that the CSE could not confirm that they would be continuing the RGR program although it continued to recognize REDACTED’s reading deficits. Tr. at 1172, 1185. The Parent testified that, once again, an ICT class was recommended. In addition, based upon the REDACTED evaluation shared by the Parent, the CSE recommended an FM unit along with related assistive technology. Tr. at 1176; Exh. 21. While the CSE did, in fact, recommend the use of an FM unit, the District psychologist expressed concern that an FM unit might traumatize REDACTED further, given his extreme sensitivity to appearing different. Tr. at 1183. The Parent was similarly ambivalent about an additional accommodation permitting REDACTED to leave classes early as she believed it would cause her son to lose even more time from class.^[17] Tr. at 1184. Finally, given her son’s handwriting issues, the CSE agreed that an occupational therapy consult should be acquired. Although the Parent continued to voice her concerns about the appropriateness of REDACTED’s placement and her son’s emotional issues, the CSE assured her that REDACTED would be appropriately served by their recommendations, including ready access to the District’s social worker.

Bu the spring of 2018, the Parent testified that REDACTED was frequently coming home reporting negative school incidents including one or two which had escalated to the principal or assistant principal. Tr. at 1187-1188. The Parent testified that her son was desperate for the approval of his teachers but now felt ashamed, fearful, untrusting and hopeless. Having been advised to work out his problems independently, he would attempt this strategy and fail. When then instructed to tell the teacher about a peer conflict, he became known as a “tattle tale.” At a loss and perceiving himself as continually bullied by peers, REDACTED’s immature responses eventually spun out of control into a DASA investigation. Tr. at 1196. REDACTED testified, “REDACTED was so scared by the end. He just wanted to get through the day and not get in trouble.” Tr. at 1300. Following this traumatic event and others, the child’s therapist, psychiatrist and neuropsychologists advised the REDACTED that REDACTED was deteriorating and suggested that a different program be secured for the upcoming school year. Tr. at 1203. Thereafter, in August 2018, the Parent submitted a ten-day unilateral transfer notice to the District. Exh. I.

REDACTED attended Private School during the 2018-2019 school year. After an initial period of adjustment, REDACTED testified that her son became more comfortable with his teachers and the program. The Parent believed that REDACTED was relieved to find other students who shared his learning profile. Beyond this, REDACTED’s teachers provided individualized emotional and instructional support on an ongoing basis. As the child’s emotional dysfunction eased, he became more accessible to learning and less threatened by the prospect of failure. Tr. at 1212.

On June 12, 2019, REDACTED again participated in a CSE convene for her son. At this time, the District offered a similar ICT classroom although it would be sited in the District’s middle school. The Parent testified that she did not agree with the programming nor did she feel the accommodations were adequate. Tr. at 1282. In some cases, she disagreed with goals that were set. Tr. at 1278-1279. Although REDACTED believed her son would be receiving 1:1 reading instruction, she noted that, in fact, Ms. Reading INSTRUCTOR’s instruction was largely provided in a group setting. Tr. at 1182-1183, 1285. Ultimately, the Parent continued to request a specialized one-to-one reading program, either during the day or after school as REDACTED was still struggling to read and write.

Consequently, and after observing the District’s program, the Parent file a second ten-day notice. Tr. at 1216-1221; Exh. J. By this time, REDACTED reported that REDACTED had experienced a second successful school year at Private School. She noted that even REDACTED’s REDACTED symptoms had decreased as the child felt comfortable with his disability and the support that he received from Private School personnel. She noted that REDACTED no longer engaged in school phobic behaviors, was willing to be challenged academically and had learned emotional strategies to cope with negative events. Tr. at 1228. In sum, the Parent testified that REDACTED had a “great” year and had progressed meaningfully.

REDACTED, Ph.D. additionally testified on behalf of the Parent. Psychologist is a neuropsychologist employed by the REDACTED Child Study Center. In this capacity, Psychologist conducts neuropsychological evaluations of children and adolescents with a variety of developmental behavioral challenges. The REDACTED Child Center is a multidisciplinary and collaborative practice which provides REDACTED and neuropsychological assistance. Clients are conferenced on a weekly basis by the clinical team which addresses REDACTED, psychological and educational management. Tr. at 1322, 1334. All assessments are shared by the team. Psychologist has known REDACTED since 2013, having conducted multiple assessments of the child as well as participating in REDACTED’s CSE meetings. His reports include neuropsychological testing, Parent questionnaires and input from school personnel when available.

In 2016, Psychologist evaluated REDACTED for the third time, having previously assessed him in 2013 and 2014. At this time, he noted that REDACTED’s overall abilities fell within the average range of the tenth percentile. His verbal abilities now fell at the fourth percentile, a score highly aligned with other dimensions of his intellectual functioning. Tr. at 1328. The witness observed that from 2014 to 2016 there had been a considerable deterioration in the child’s intellectual function and performance, including regression in basic reading mechanics, sight word identification, phonological decoding, oral and silent reading fluency and comprehension. Tr. at 1362. As the witness reiterated during prior CSE meetings, REDACTED’s ability to read sight words and decode with any fluency had declined as had his comprehension. Although the District indicated that the child’s Fountas and Pinnell reading levels were progressing, Psychologist opined that REDACTED was not maintaining this progress and, as the work grew more sophisticated, his academic skills were regressing. In essence, the witness testified, “he was moving forward, but at the same time falling farther behind.” Tr. at 1329. Thus, while the District asserted that REDACTED had progressed from a Teacher’s College Level D to a Level I in reading, Psychologist testified that the improvement was illusory as the child was scoring worse on all the other test metrics. Tr. at 1402-1403.

In 2018, Psychologist conducted a follow-up neuropsychological assessment. Exh. 30. At this time, it was clear that three long existing factors were negatively impacting REDACTED’s ability to access an education. These included the child’s significant language delays, an identified REDACTED disorder and a clinical REDACTED diagnosis, all exacerbated by REDACTED’s REDACTED and the presence of a “densely populated academic setting.” Tr. at 1330-1331.

In the spring of 2018, Psychologist participated in a CSE convene for REDACTED Exh. 24. At this time, the clinician again recommended that REDACTED receive literacy support on an individualized basis along with assignment to a small classroom of 12-15 educationally compatible students. The witness opined that REDACTED had “multiple vulnerabilities to education,” including significant receptive and expressive language delays, educational delays, attentional deficits and emotional challenges.

In fact, the witness testified that REDACTED’s REDACTED was a “key” element of the child’s unavailability for learning. Tr. at 1345. Beyond this, he did not believe a class of 23 or 24 students was appropriate for the child as REDACTED’s language delays, processing issues and educational deficits interfered with the child’s ability to assimilate academic materials within this context. He testified, “... It fails to address the scope of his needs linguistically, educationally and emotionally.... and is not appropriate.” Tr. at 1444. Psychologist opined that the distraction inherent in a large class along with REDACTED’s anxieties would only intensify his inability to function within the classroom. Tr. at 1342, 1349-1350. As a result, psychologist REDACTED indicated that he had consistently recommended individualized reading instruction and a smaller classroom setting. Tr. at 1338.

Significantly, the clinician concurred broadly with the District’s broad recommendations for speech/language therapy and counseling but did not agree with the specifics of intervention. Tr. at 1411. Thus, while referencing the child’s IEPs, Psychologist concurred substantively with the recommended accommodations, modifications and recommendations. He differed, however, with the manner in which services were provided. Tr. at 1420. For example, while the witness agreed with the need for small group remedial reading, he opined that the alternate day 40-minute group class was inadequate for REDACTED Tr. at 1420. Beyond the inadequate literacy support, Psychologist opined that the large class would simply not furnish REDACTED with the individualized support he required. Rather, what REDACTED required was a language-based classroom and curriculum which offered daily individualized literacy instruction. Tr. at 1446.

Again, Psychologist reiterated his recommendations throughout REDACTED’s evaluations and CSE convenes but opined that the District did not seem receptive to his suggestions. Tr. at 1336, 1339. As a result, Psychologist recommended the Parents retain a different independent neuropsychologist as he believed the District was ignoring the reports from REDACTED. Tr. at 1339-1340.

In March 2019, Psychologist conducted an observation of REDACTED at Private School. Exh. 0. Although REDACTED was initially very anxious about transitioning to Private School, by March 2019, Psychologist noted that REDACTED was feeling more comfortable within their academic environment. By September 2019, many of the child’s anxieties and phobias relating to school had diminished. Tr. at 1347-1348; Exh. K. Consequently, REDACTED was able to focus upon learning, a fact reflected by a 2 ½ year grade silent reading advancement yielded on the Kaufman Test of Educational Achievement (hereinafter “KTEA”) in reading.^[18] Tr. at 1365-1366; Exh. K at 5. Significantly, the witness indicated that the silent reading score reflected a composite measure of fluency, accuracy and comprehension. The fluency aspect was critical as it exerted a global impact upon multiple metrics including comprehension. Having so testified, the witness indicated that REDACTED had actually evidenced a decline in intellectual function after 2013 and REDACTED’s half year growth in reading while in District was disappointing, given his earlier intellectual capabilities. Tr. at 1362-1363. Ultimately, Psychologist attributed REDACTED’s progress to the structure and educational protocol adopted by Private School. Tr. at 1355-1357.

On June 12, 2019, the witness again participated in a CSE convene for REDACTED Exh. 31. Based upon the consensus of REDACTED’s REDACTED team, Psychologist provided an update of the child’s educational and emotional status and again recommended the placement at Private School. Although the child had made significant literacy gains, the child’s oral reading remained static.^[19] Likewise, Psychologist testified that other sub-scores which indicated no progress or even regression were reflective of inherent test errors or minor one-point variations in standard scores. Tr. at 1372-1373. Although some in-District testing performed did yield evidence of academic improvement, the witness indicated that Private School was narrowing the gap between REDACTED and his peers, whereas the District was simply maintaining it. Tr. at 1380. In fact, Psychologist testified, “If he makes half a year’s worth of growth in a year’s worth of time, admittedly on a specific metric, then he is falling farther behind because many of his peers are making a year’s worth of growth in a year’s time. Not only is it not narrowing the gap, it is actually amplifying the gap.” Tr. at 1403.

Therapist is a licensed clinical social worker who became REDACTED’s treating therapist when Dr. Therapist closed her office on Long Island. He has known REDACTED for approximately two years as both a District and Private School student. Transitioning to Private School, he noted that the child initially remained anxious about many of the issues which had previously upset him in District. While addressing the unique experiences associated with attending a new school, REDACTED additionally articulated concerns regarding bullying and struggling in class. As the year progressed, Mr. THERAPIST maintained weekly communication with the child’s Focus teacher and additionally held telephone conferences with other personnel on a quarterly basis. The clinician noted that REDACTED was much happier in the new environment and complained of fewer psychosomatic symptoms. He noted that the child related well to Private School personnel and was less emotionally volatile, REDACTED and REDACTED. The witness testified, “He doesn’t sit, violently crying in sessions like he did when I first met him, or tell really heart wrenching stories... I remember how sad he was about many of the things that happened to him in school and how fearful he was based on his experiences in school, not based on only his impression of himself, but how he expected others to treat him in the school environment.” Tr. at 1468-1469.

As school became less threatening to REDACTED, the child became more interested in solidifying the positive relationships he had built at Private School as well as addressing relationships at home and in his community. Tr. at 1457. As Mr. THERAPIST and Ms. instructor collaborated, REDACTED learned to reframe inferences, avoid precipitous conclusions and redirect negative predictions, easing REDACTED’s anxieties about doing the wrong thing and having children dislike him. Tr. at 1461-1462. This was particularly important for REDACTED as the child’s obsessive thoughts became intractable distractions in class, a situation exacerbated by the child’s limited language skills. Tr. at 1466. In this manner, Ms. instructor became a “safe haven” for the child and facilitated his ability to navigate his day.

The School District’s Position The School District maintains that the IEPs of May 8, 2018, June 13, 2018 and June 12, 2019 are valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Exhs. 24, 28, 31. Specifically, the District asserts that the student was duly furnished with FAPE during the 2018-2019 and 2019-2020 school years. Inherent within this position, the School District asserts that the IDEA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. Thus, compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]) and in “light of that child’s circumstances.” Endrew F. v. Douglas Cty Sch. Dist. Re-1, 137 S. Ct. 988 (2017).

The District additionally maintains that the Private School placement is not an appropriate placement for the student as its program is unduly restrictive and does not comport with the notion of furnishing services within the least restrictive environment. Beyond this, the District maintains that REDACTED’s 2018-2019 class of three was unduly small and that the School failed to provide REDACTED with the related services he required. Finally, the District maintains that the Parents have not met their equitable burden and their actions militate against their entitlement to relief.

The Parents’ Position The Parents assert that the School District stands in abrogation of its duty to provide REDACTED with a free and appropriate public education for the 2018-2019 and 2019-2020 school years in violation of the IDEA See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEPs generated May 8, 2018, June 13, 2018 and June 12, 2019 reflect a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the documents. Exhs. 24, 28, 31. The Parents argue that the District’s educational plan did not adequately incorporate the recommendations of their private evaluations and marginalized the child’s deficits. Similarly, the Parents assert that the District’s programming did not offer adequate, targeted one-to-one instruction in a non-distracting setting, amenable to a student with REDACTED and emotional dysfunction. Finally, the Parents maintain that the District did not adequately appreciate student’s emotional and academic profile nor did it offer services within a suitably enriched pupil: personnel paradigm.

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

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

Discussion

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

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

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

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

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

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

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

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

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), were the May 8, 2018 and June 20, 2018 IEPs reasonably calculated to confer an educational benefit upon REDACTED during the 2017-2018 and school years?

Sufficiency of Evaluations

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

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

The IEP for the 2018-2019 school year references extensive evaluations and assessments. It includes, at a minimum, standardized measures on the Wechsler Individual Achievement Test- III; Wechsler Intelligence Scale for Children-5th Ed.; Wide-Range Assessment of Memory and Learning- II; multiple REDACTED and Connor assessments, the Beery VMI-6; GORT-V; Developmental Neuro-Psychological Assessment (hereinafter referenced as the “NEPSY-II”) and Comprehensive Test of Phonological Processing in addition to the contributions of independent evaluator and psychologist, REDACTED REDACTED, Ph.D. Exhs. 20, 24,28, passim. Having been performed in 2018, the evaluations comply with the mandates set out in 8 NYCRR 200.4(b)(4) and are not stale. Reviewing the 2018-2019 IEPs, I find that all testing was current and accurately reflected the student’s present levels of performance, both strengths and weakness, giving a global view of REDACTED’s ability to function within the classroom.

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

However, while the District is not obliged to wholly adopt the recommendations of a Parent’s private expert, neither can it totally marginalize it findings. The independent educational evaluations must be considered and reviewed. This is particularly important in the matter at bar, given the fact that the most recent Educational Assessment performed by the District is dated April 5, 2016 and is a reflection exclusively of REDACTED’s achievement on the Woodcock Johnson, absent an assessment of cognitive ability. Exh. 20, passim. Indeed, the cognitive scoring referenced within the District’s IEPs was adopted exclusively from the independent neuropsychological report obtained by the Parent. Ibid. A review of achievement cannot be understood in the absence of context. It is the neuropsychological report which provides depth and insight into REDACTED’s achievements, relative to his potential. The District’s reliance upon solitary TC achievement metrics neglects the cognitive issues raised by the neuropsychological testing. Given the CSE’s reliance upon Psychologist’s testing and the lack of testimony from the District’s psychologist, either orally or via affidavit, the testimony of independent psychologist, Psychologist, stands undisputed. Psychologist’s evaluation reflects a comprehensive assessment of REDACTED’s cognitive, social-emotional and achievement profile. Its findings are based upon standardized testing under appropriate conditions, extensive documentation, observations and consultations with providers and educators. The Parent willingly shared its content, providing the report in full. Indeed, even District personnel acknowledged the credibility of evaluative material obtained from REDACTED’s Langone Health Center (hereinafter “REDACTED”). Tr. at 442.

At the outset, Psychologist’s report described a child who would clearly benefit from special education accommodations and modifications. In furtherance thereof, his report indicates testing on the WISC-V yielded a full-scale IQ of low average. Exh. 20 at 3. Summarizing REDACTED’s performance within the context of sub-test scores, the clinician indicated that REDACTED exhibited strengths in intellectual reasoning, processing speed and working memory but continued to struggle with problem-solving and receptive language (following directions, understanding spoken paragraphs), Exh. 20 at 14-15. Nevertheless, Psychologist’s report indicates that further analysis of REDACTED’s cognitive sub-tests and indices was integral to a global understanding of REDACTED’s ability to function within the classroom environment.

Specifically, REDACTED’s score on the Comprehension of Instructions sub-test of the NEPSY-II fell at less than one percentile, an “extremely low” score. Ibid. Moreover, at ten years old, REDACTED’s deficits on the CELF-V were particularly evident in terms of his ability to utilize language appropriately. Here, REDACTED’s scores were at almost 3 years behind the age equivalent standard with his use of semantic relationships falling at age five. Referencing the child’s receptive language skills, the report states, “REDACTED demonstrated poor ability to understand and respond to increasingly complex directions, largely due to misinterpreting details presented.... REDACTED truly struggled to understand and interpret orally presented sentences that make comparisons, identify location or direction, specify time relationships, include serial order or are (sic) expressed in passive voice.” Exh. 20 at 4. Clearly, the child presented with underdeveloped language skills which translated into significant difficulty responding to complex directions and interpreting details correctly.

In contrast, REDACTED’s expressive language was more age appropriate although even these skills indicated some weaknesses. For example, while the child produced substantively correct answers when asked to formulate complex sentences with targeted answers, he did so in syntactically incorrect format. Finally, the child exhibited difficulty with organizing language,^[20] paragraph and essay writing. In furtherance thereof, the 2018-2019 IEPs indicate that REDACTED struggled with the mechanics of writing. By the end of fourth grade, the Teacher Progress Summary indicates that, “He [REDACTED] currently still relies on adult assistance and reassurance in order to elaborate on his ideas. REDACTED has great difficulty applying sentence and paragraph structure within his work and he does not always recognize errors in capitalization and punctuation.” Exh. 28 at 7. Similarly, the child’s reading specialist indicated that “REDACTED has difficulty organizing his thoughts in order to provide a clear retell of an article or story. For example, he sometimes confuses characters’ actions and names.” Ibid.

Significantly, speech/language therapist REDACTED testified that she had not evaluated REDACTED herself but relied, in part, upon Psychologist’s neuropsychological report, developing goals in response to deficits outlined by the neuropsychologist. Tr. at 438-439. In her report to the CSE during the 2018-2019 convenes, she noted that the child continued to struggle with word retrieval and grammar and further demonstrated deficits with more sophisticated skills such as comparing/contrasting and reasoning out the basis for various word associations. Tr. at 399-400; Exh. 24 at 8. Indeed, in response to Psychologist’s CELF-V testing, a goal addressing semantic relationships was incorporated into the IEP.

Nevertheless, in the intimate and protected environment of Ms. REDACTED’s speech room, the speech/language therapist testified that, “I felt like I was seeing a different child.” Tr. at 431-432. Given her structured setting and absent the distractions of classroom competition and comparison, many of REDACTED’s anxieties were minimized. Moreover, within this intimate and quiet paradigm, REDACTED was provided with virtually immediate feed-back regarding the correctness of each response. This is particularly beneficial for a student who demonstrates poor comprehension of instructions and REDACTED weaknesses in the areas of discrimination, figure-ground listening and temporal integration. Exh. 21 at 6. Moreover, Ms. REDACTED’s statement that she was seeing “a different child” is consistent with a child whose profile includes cognitive, speech and REDACTED impairments but is, notwithstanding all of this, successful within a small, structured environment.

In her March 18, 2018 REDACTED Evaluation, an independent evaluation utilized during the 2018-2019 CSE convenes, REDACTED, Ph.D. noted that the composite score on the SCAN 3C did not reflect the presence of an REDACTED disorder. Nevertheless, Dr. REDACTED reported that an assessment of REDACTED’s audiological sub-tests was integral to understanding REDACTED’s global ability to function within the classroom environment. Her approach is analogous to that of Psychologist, who also indicated that a full picture of REDACTED’s abilities must include critical review of the sub-tests. In furtherance thereof, REDACTED yielded scores on the measure of auditory comprehension sub-test at the 5th percentile. Exh. 21 at 7. Likewise, deficits in temporal processing on time compressed (rapid) sentences reflected a scaled score of two (.4 percentile) while figure ground listening scored at the 16th percentile.^[21] Indeed, Psychologist indicated that one of the two issues which most compromised REDACTED’s ability to access educational materials was the presence of his REDACTED disability. Tr. at 1330.

In fact, REDACTED’s deficits extended beyond cognitive, auditory and language impairments. Exacerbating these fundamental deficits were (1) REDACTED’s weaknesses in attention regulation and executive function (i.e. cognitive and task shifting, self-monitoring, problem-solving) and (2) the child’s emotional dysfunction. Exh. 20 at 5.

Based upon Psychologist’s testing and referenced within the 2018-2019 IEPs, REDACTED’s REDACTED continued to exert an impact upon the child’s ability to focus consistently on work. Ibid. As per the REDACTED Continuous Performance Test-Third Edition (hereinafter referenced as the “CPT 3”), REDACTED exhibited “a high rate of random, repetitive or anticipatory responses..., suggestive of some impulsivity.” Exh. 20 at 6. The neuropsychologist further indicated that REDACTED’s deficits had become more pronounced since earlier testing, a result of slow maturation of the attention system, increasing REDACTED and weaker scores relative to age expectation. Ibid. As testing ensued, REDACTED demonstrated substantial difficulty maintaining his attention and focus, unless support and guidance were offered. Ibid.

It should be noted that Psychologist’s assessment is aligned with the REDACTED-3 reports of District reading specialist Reading INSTRUCTOR and the Parent. Both individuals observed that REDACTED was at risk for several behaviors relating to attention, withdrawal, adaptability and executive function. Their assessments are, in part, aligned with each other as well as with Psychologist’s impressions during testing. Given their consistency, I find their input credible relative to the nature of their relationship with REDACTED and the frequency of interaction across environments. In contrast, I do not find a REDACTED-3 assessment completed by REDACTED persuasive in any way. Ms. REDACTED’s name appears nowhere in any IEP admitted into the record. She did not conduct the Education Evaluation of April 4, 2016 and the basis for her knowledge of REDACTED is unclear. Under these circumstances, her testimony has limited value and I am weighting its import accordingly.

The IEP’s Teacher Report further parallels Psychologist’s findings. The IEP teacher notes indicate, “Throughout the day, he [REDACTED] continues to require prompting to remain focused and on task, as he is easily distracted by both internal and external stimuli. REDACTED also has difficulty holding onto multi-step directions, and frequently (sic) check-ins with a teacher before beginning an assignment.” Exh. 24 at 7. Thereafter, to manage his off-task behaviors, several modifications were denominated in the child’s 2018-2019 IEP, many of which were continued verbatim from the January 31, 2017 IEP. Exh. 6 at 12. Clearly, REDACTED’s attentional issues were continuing to compromise his ability to cope within the classroom, an academic scenario which Psychologist suggested would only deteriorate with advancing demands. Exh. 24 at 8.

Psychologist’s report clearly indicates that while REDACTED’s baseline skills were adequate, they declined as demands escalated. For example, as the difficulty of tasks increased, REDACTED became disorganized and lost track of the task before him. Alternatively, the child responded precipitously, sacrificing accuracy for speed. In some cases, REDACTED demonstrated difficulties switching between two sets of information or perseverating on prepotent learned responses. Exh. 20 at 7. Psychologist’s description of these needs is incorporated into the child’s 2018-2019 IEPs. Exhs. 24 at 13-14; 28 at 13-15. The District did not present any psychological testimony, either by documentation, affidavit or live testimony, and all of this stands unrebutted.

Significantly, it should be noted that all of REDACTED’s evaluations occurred within highly structured, individualized settings. Nevertheless, these artificial testing accommodations are inconsistent with the manner in which materials are presented to students within the classroom. Thus, these standardized scores essentially present a cognitive and achievement profile reflective of an idealized, alternate test reality rather than one based upon actual classroom performance. As noted in Psychologist’s report, REDACTED’s scores suffered when presented with time-compressed test challenges, suggesting a lack of automaticity and an inability to maintain focused attention. Consequently, the time-compressed scores are far more probative of REDACTED’s ability to function within the classroom.

Most importantly, the child’s mental health and its impact upon REDACTED’s ability to access an education must be addressed. REDACTED’s longstanding REDACTED history includes a diagnosed REDACTED Disorder, REDACTED Disorder and Generalized REDACTED Disorder. The child is well known to the CPSE, having received early intervention following a complicated premature birth with multiple co-morbidities. The record indicates that REDACTED has always been at-risk for REDACTED disability, given the extensive REDACTED history within the family. Exh. 20 at 1.

In fact, the earliest records submitted into the record confirm that even peripheral providers such as the occupational therapist remarked upon the child’s REDACTED and the manner in which it impacted his re-evaluation. Exh. 3 at 2-3. Likewise, an Education Evaluation dated April 5, 2016 indicates that “[REDACTED] exhibits REDACTED throughout the day and complains often.... REDACTED’s REDACTED prevents him from initiating and following through with tasks.” The Educational Evaluator summarized, “REDACTED’s REDACTED impacts his learning and ability to answer things that he finds challenging. As a result, ongoing monitoring and teacher support need to be provided to ensure his accuracy and comprehension. Exh. 4 at 1, 7.

Again, the IEP of January 31, 2017 liberally references an evaluation conducted by REDACTED. Exh. 6, passim. The earlier document alludes to the child’s persistent psychosomatic complaints, obsession with following a schedule/going home and ongoing resistance to initiating a task independently. The child’s teacher remarked, “he [REDACTED] becomes overwhelmed by new material but after one-on-one assistance, E. B. is willing to try it out on his own.” Exh. 6 at 6. Although the child’s coping strategies improved as the year progressed, the IEP notes that REDACTED continued to struggle with self-regulation, self-advocacy and the ability to read social cues. Exh. 6 at 8.

By the 2017-2018 school year, the child was being seen regularly by a psychiatrist, neuropsychologist and therapist. REDACTED was additionally medicated with antidepressants and REDACTEDs for REDACTED/panic attacks. At one point during the school year, the child’s somatization of emotional stress led to heart palpitations, elevated blood pressure and the need to wear a Holter monitor. These facts are undisputed.

In his report, Psychologist now indicated that REDACTED exhibited persistent REDACTED, low mood and irritability, manifesting frequently as sadness, frustration, insomnia and poor self-esteem. The clinician states, “Given his excessive worrying and REDACTED, restlessness, difficulty concentrating, irritability and sleep disturbance, REDACTED continues to meet criteria for Generalized REDACTED Disorder.” Exh. 20 at 5. The neuropsychologist observed that the child’s obsessive cognitive efforts and energy [attempting to please others], compromised his ability to focus on educational presentations. These distractions then acted synergistically as REDACTED’s lack of focus led to academic failures which then reinforced REDACTED’s REDACTED about keeping up with his peers. By the time REDACTED was referred to a cardiologist, it is clear that the child’s dysfunction was spiraling out of control.

Although the CSE was presented with ample evidence of REDACTED’s REDACTED deterioration, it continued to marginalize the importance of the neuropsychological findings offered by Psychologist, the Parents, his psychiatrist and therapists. While the CSE did, in fact, possess appropriate evaluations and assessments for REDACTED, it gave inadequate weight to much of its content. Rather, it cobbled together a program which was demonstrably inadequate for REDACTED.

Indeed, there are two narratives in the case at bar. In one scenario, District personnel and special educator INSTRUCTOR described the child as “thriving... happy, friendly and easygoing.” Tr. at 168. In the other, REDACTED’s Parents, therapists, psychiatrist and psychologist portrayed a child whose REDACTED and depression had become crippling. Indeed, while the documentation set forth in the child’s IEP describes an individual with a plethora of emotional challenges, District witnesses testified to the contrary. Nevertheless, there are many points of intersection between the two positions.

Comparing his own 2016 assessment with that of the District’s, Psychologist indicated that “declines were evident in overall intellectual functioning as well as language intensive verbal comprehension, spatial analysis and processing speed.” Exh. 5 at 2. Similarly, assessment by District Educational Evaluator, REDACTED REDACTED, reflected poor reading, math and written language scores across the board with particular deficits in word identification (5th %), sound-symbol knowledge (6th %) and fundamental literacy index (6th %). Exh. 4, passim. While many sub-scores were average to considerably below average, math remained a relative strength. Nevertheless, Ms. REDACTED, the child’s special education instructor during the 2016-2017 school year, did not believe REDACTED required AIS reading support. Tr. at 88-89. Rather, she noted that REDACTED was responding well to the interventions offered through the TC program and RGR.

It is hard to reconcile Ms. REDACTED’s opinion with the facts, especially the achievement scores obtained by the District’s own evaluator as referenced above. Exh. 4. Even by second grade, REDACTED was evidencing REDACTED, “throughout the day,” complaining often of psychosomatic ailments, struggling to following directions and resisting independent work due to a lack of confidence and a fear of failure. Exh. 4. Moreover, Ms. REDACTED did not recall whether she was aware of REDACTED’s medication protocol, nor was she familiar with the REDACTED scaffolding which was keeping REDACTED emotionally stable. She did, however, acknowledge that REDACTED struggled with self-regulation, recognizing social cues and effectively self-advocating. Tr. at 96, 132-122, 135. Noting that REDACTED experienced moments of REDACTED accompanied by emotional outbursts throughout the day, she further testified that the child’s emotional reactions were easily redirected. This, of course, is only Ms. REDACTED’s perception and neglects any consideration of REDACTED’s REDACTED profile, particularly his obsessiveness. Given REDACTED’s somatization of his fears, his medication protocol, his obsessive REDACTED, his need for therapy and his constant REDACTED throughout the day, Ms. REDACTED’s testimony that REDACTED was “having a lot of fun,” is not persuasive. Tr. at 90.

Likewise, the testimony of INSTRUCTOR aligns exclusively with her own perceptions. To begin, it should be noted that teacher INSTRUCTOR was on maternity leave for several months during the 2017-2018 school year. During this time, she had no contact with the student but testified she was in communication with her leave replacement. Tr. at 260. Nevertheless, INSTRUCTOR was unaware that a new homework protocol had been instituted for REDACTED As the child’s REDACTED had escalated, REDACTED was now excused from homework assignments if he deemed them too stressful. Tr. at 262. She testified that she did not recall REDACTED’s specific medication regime but was aware the child was being treated by a psychiatrist and therapist. Tr. at 271. Her knowledge of the student was based upon two months or so at the beginning of the school year and approximately two to three months at the end.

At the onset, when asked to describe REDACTED, INSTRUCTOR immediately noted that the most salient aspect of his learning profile concerned his REDACTED. Tr. at 264. Although INSTRUCTOR described a quick acclimation to her classroom, ten-year-old REDACTED nevertheless required a “few weeks” to adjust. Tr. at 148. As the year unfolded, the witness acknowledged REDACTED’s “multi-facetted” REDACTED which surfaced during the presentation of new material, transitions, unstructured social settings, fire drills and bus safety drills. Tr. at 294, 297-311, 311-312. Despite her characterization of REDACTED as a “happy” child, these anxieties were no longer discreet fears which could be managed quickly within the classroom. Rather, the conditions which precipitated REDACTED’s REDACTED pervaded REDACTED’s entire school day, setting off ever-present emotional flares.

As the year progressed, REDACTED’s emotional dysfunction led to school refusals, severe separation REDACTED and perseveration over class schedules, schoolwork, social interactions, arrival and dismissal protocols. INSTRUCTOR was in frequent communication with the Parent and was aware that REDACTED’s struggles in a noisy unstructured gymnasium now required a separate morning and afternoon procedure for drop-offs and pick-ups. Tr. at 359-360. Nevertheless, the witness testified, “We would address the [REDACTED provoking] situation and then we would get to work once everything was settled.” Given the child’s obsessive-compulsive disorder, medication regime, somatization and diagnosed REDACTED disorder, INSTRUCTOR’s statement is both naïve and unpersuasive. While the child may have appeared on-task and appropriate, much of this behavior reflected little more than the child’s wish to avoid public embarrassment. Exh. 28 at 10.

Similarly, while Ms. REDACTED described emotional “bursts” which occurred throughout the school year as minor interruptions, even she later testified that they were interfering with his education while they were occurring. Tr. at 129. Regrettably neither educator viewed REDACTED’s behaviors within the context of his multiple emotional disorders, despite physical and clinical evidence that REDACTED’s somatization had reached dangerous proportions. Indeed, the primacy of REDACTED’s REDACTED issues underscores the need to view the child’s behavior within this context. In fact, the District was aware that after extensive medical evaluation, it was determined that REDACTED’s high blood pressure and heart palpitations were secondary to symptoms of obsessive-compulsive disorder, depression and REDACTED within the school environment. Their belief that REDACTED’s emotional issues simply disappeared once he picked up a pencil is simplistic. Tr. at 264-266, 269. Indeed, Psychologist indicated that interpersonal difficulties constantly occupy his emotional focus and energy. Exh. 20 at 11. Ultimately, both Ms. REDACTED’s and INSTRUCTOR’s perceptions were merely their own perceptions, divorced from the reality of REDACTED’s internal dialogue and his feelings.

In fact, even INSTRUCTOR indicated that REDACTED would periodically place his head on the desk and cry. Tr. at 307. Considering her limited experience with REDACTED due to months on maternity leave, the “clusters” of crying to which she testified occurred far too frequently for a 10 ½ year old boy. Tr. at 307. On other occasions, INSTRUCTOR testified to the presence of facial spasms along with behavioral and REDACTED vocal tics. When deep breathing and expressive writing could no longer control REDACTED’s emotions, a behavior chart was developed. Thereafter, REDACTED was offered unlimited access to the school social worker and bathroom. If INSTRUCTOR did not observe sufficient evidence of REDACTED’s emotional decompensation at school, it was only because of his medication protocol, the support of various REDACTED and psychological providers and the child’s desperate struggle to appear like everyone else.

Notwithstanding her marginalization of REDACTED’s symptomatology, it is evident that by the spring of 2018, REDACTED’s emotional dysfunction had superseded INSTRUCTOR’s ability to manage the child within the classroom. Tr. at 307. REDACTED’s unfettered access to Social Worker had become excessive and a rating system was now developed so that REDACTED could assess the urgency with which he needed to speak with counselor Social Worker. Exh. 23. It is beyond cavil that a child who is spending significant time speaking with the social worker outside of class, rating his levels of distress, leaving notes under the door when the social worker was unavailable and seeking out the bathroom is not accessing the educational curriculum Tr. at 299, 1259. Despite teacher observations to the contrary, Psychologist now reported that REDACTED’s REDACTED dysfunction was compromising his ability to function within the classroom by “impact[ing] the child’ ability to fully demonstrate what he knows.” Exh. 24 at 10; 28 at 10.

Although educator INSTRUCTOR testified that REDACTED was “one hundred percent capable of working in an ICT classroom,” one wonders how this would occur when REDACTED’s emotional fragility was frequently being managed outside the classroom. Indeed, INSTRUCTOR largely dismissed the peer disputes and altercations with which REDACTED was involved, describing them as the “normal childhood conflicts through which children grew as human beings.” Tr. at 383. While it is true that REDACTED wanted to have friends, his desire does not translate into a social skill. Moreover, given the dismissiveness of INSTRUCTOR’s approach, REDACTED felt “unsafe in school, unprotected by personnel and emotionally defeated.” Although encouraged to manage his social interactions independently, REDACTED simply did not have the language, insight and maturity to do so. His efforts to bribe other students into befriending him was little more than a heartbreaking cry for help. Tr. at 800. As the social skills of other children were maturing, REDACTED was struggling. The 2018-2019 IEP states, “His reactions to challenges that arise continue to be disproportionate, particularly when he feels that someone is upset with him..... While the difficult social situations he encounters are age appropriate, his responses often exacerbate the situation, making his social interactions more challenges.” Exh. 24 at 10. While District personnel were urging the child to self-advocate, he did not have the ability to do so appropriately, a fact borne out by a disastrous playground event which precipitated a DASA investigation. Tr. at 1196. Nevertheless, District personnel continued to trivialize REDACTED’s negative social interactions. Alternatively, its use of punishment was antithetical to the supportive intervention REDACTED required for his clinical anxieties.

In fact, as INSTRUCTOR was describing a, “friendly and easy-going child,” REDACTED was being medicated with anti-depressive and anti-obsessive medications for clinically significant diagnoses. His heart palpitations and high blood pressure now required cardiac intervention and assessment with a Holter monitor. Tr. at 1156. Dr. Therapist reported that her therapeutic goal for REDACTED was “just to help him survive until the end of June.” REDACTED was begging District personnel to let him go home early, crying uncontrollably at home and in therapy, and refusing to attend school. While District personnel saw no evidence of bullying, Dr. Therapist indicated that REDACTED’s reports were credible and confirmed by District personnel with whom she collaborated on a day-to-day basis. Tr. at 846-847. Recalling REDACTED’s therapy sessions while in District, REDACTED THERAPIST further testified, “He doesn’t sit, violently crying in sessions like he did when I first met him, or tell really heart wrenching stories... I remember how sad he was about many of the things that happened to him in school and how fearful he was based on his experiences in school, not based on only his impression of himself, but how he expected others to treat him in the school environment.” Tr. at 1468-1469. Given all of the above, INSTRUCTOR’s description of a happy, friendly and easy-going child is simply not persuasive or credible. Tr. at 168, 198-199.

Indeed, the record indicates that while Social Worker was aware of REDACTED’s REDACTED, she testified that this was improving as the year ensued. Although she acknowledged that the child was having difficulty coming to school and that there had been several occasions in which REDACTED was too frightened to enter the classroom, she too opined that REDACTED was progressing well in school. Tr. at 476, 480. Again, while this may be Ms. Social Worker’ impression, it was utterly inconsistent with the child’s experience and his perceptions. Indeed, Dr. Therapist’s testified that, as REDACTED’s emotional stability deteriorated toward the end of the year, she was in day-to-day communication with Ms. Social Worker. By this time, REDACTED was no longer able to function in the school setting, an opinion based upon conversations with the child, his Parent and school personnel. Tr. at 847. Regrettably, many of the child’s issues were marginalized and REDACTED’s own perceptions were dismissed, even when they were supported by community providers.

Finally, it should be noted that while neither Ms. REDACTED nor INSTRUCTOR could recall the details of REDACTED’s medication regime, both testified that they were in ongoing communication with the Parent. Similarly, Ms. Social Worker was in frequent contact with Dr. Therapist who often called to corroborate REDACTED’s accounts of school incidents and bullying. Tr. at 847. Having reviewed the substance of the Parent’s testimony and the manner in which it was given, it is difficult to believe District personnel were unaware of the depth of REDACTED’s emotional struggles at the time. While District witnesses frequently indicated that they had no recall of various specifics, I have no doubt that the Parent and her providers eagerly shared this information at the time in an effort to advocate for REDACTED The Parent and her team were credible and candid reporters of the child’s struggles who had no reason to minimize REDACTED’s issues or withhold information as they were seeking the District’s help. The record indicates that REDACTED freely emailed District employees when behavioral issues arose^[22] and communicated with staff on an on-going basis. Exhs. M,N. REDACTED shared the results of all independent educational evaluations and secured the participation of these clinicians at various CSE convenes. Nevertheless, although these individuals participated, both Psychologist and Dr. Therapist believed their recommendations were ignored with school personnel continuing to insist REDACTED was happy and thriving. Tr. at 841, 1339-1340. Clearly, if personnel did not know that REDACTED was deteriorating, they should have known. Their views of REDACTED were based upon their own perceptions of the child, absent a sensitivity to the child’s perceptions, his medical/REDACTED needs and due deference to the opinions of other professionals.

Under these circumstances I find that the CSE possessed sufficient and appropriate evaluations memorializing REDACTED’s present levels of performance but did not adequately consider them. Given the CSE’s reliance upon Psychologist’s testing and the lack of testimony or evidence from the District’s psychologist, I find that the REDACTED contributions to the CSE meeting were not weighted appropriately. While the District relied upon Psychologist’s evaluation, it selectively adopted its recommendations, based upon what the District could reasonably furnish short of recommending a non-public school placement. It was not enough.

The Program Recommendation for 2018-2019/ The Class

At some point along the continuum, supplementary instruction, educational modifications and testing accommodations render one’s participation in integrated classes more illusion than fact. The extensive accommodations and modifications required by REDACTED could not be furnished within the ICT setting without transmuting the very nature of an integrated classroom. This was especially true given REDACTED’s REDACTED Disorder, REDACTED Disorder, REDACTED, REDACTED Disorder, and various Learning Disorders in Reading and Writing, a profile exacerbated by deficits in executive function interacting synergistically with the co-morbidities noted above. While a seamless mesh of accommodations and classroom instruction may be possible for some children, at some point an array of modifications, pull-outs and extra teachers simply cannot compensate for small classes.

It should be noted, moreover, that pupil/personnel ratio is not the only factor which may determine the level of distraction within a class. It does not address the issue of instructional pacing, the heightened presence of visual stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. The importance of transition issues, such as packing up materials, navigating the building efficiently and regaining focus, are marginalized. Tr. at 1330-1331, 1342, 1349-1350. More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented. Clearly the delayed feedback inherent within a larger integrated class would impact negatively on a child whose executive function is described as “weak,” and whose ability to comprehend instructions fell below the first percentile. Exh. 20 at 4. For a student such as REDACTED, instruction -even within an integrated setting- advances at a pace which far out-strips his ability to keep up. As a result, the student is always struggling to develop foundational skills while others are moving on to more advanced materials. This is particularly difficult for a child who is suffering from multiple emotional and REDACTED disorders.

REDACTED is a child who is acutely aware of his shortcomings and the strengths of others. Tr. at 481,988, 1171-1172, 1338. Indeed, the “cube” system developed with Ms. REDACTED was a reflection of the shame REDACTED felt by his need for classroom support. Tr. at 481; Exh. 11. Clearly, the impact of his emotional fragility was underestimated. Although an academically heterogeneous group would not necessarily disturb many special education children, the mixed profile offered to REDACTED only reinforced his sense of inadequacy, humiliation and REDACTED. While the IDEA creates a "strong presumption that children with disabilities will be educated in regular classes with appropriate aids and services, this is not always appropriate for each child (Oberti v. Bd. of Educ., 995 F.2d 1204 (Cir. 1993); P. v. Newington Bd. of Educ., 546 F.3d 111, 120 (2d Cir. 2008).

Finally, Dr. Therapist noted that the classroom size, absence of a social/emotional curriculum and lack of interaction between staff and REDACTED during unstructured times established an unmanageable environment for the child. Tr. at 822-830. Specifically, the child required a more intimate pupil: personnel ratio along with instructors knowledgeable in the area of emotional dysfunction. As REDACTED was unable to read social cues, the child required detailed intervention to facilitate appropriate interpretations in addition to structured settings in which the child could practice social skills in the presence of coaching and supervision. Consequently, the social strategies provided by the District were inadequate as they were reactive rather than proactive for the child. They did little in terms of prevention. Rather than learn to avoid negative social situations, REDACTED was merely learning to cope with the consequences. Tr. at 831.

During the 2017-2018 school year REDACTED received three forms of reading instruction. This included 40 minutes of whole or small group daily literacy instruction using the TC reading protocol. Beyond this, RGR was offered by INSTRUCTOR on a 3-5 (20 minute) basis per week, although Ms. REDACTED had testified that REDACTED received this service daily. Tr. at 89. A third service reflected a Leveled Literacy Intervention pull-out with Amanda Reading INSTRUCTOR for four (30 minute) group sessions.^[23] Although the independent educational evaluations recommended individualized instruction, none of these services were truly individualized.

Ms. Reading INSTRUCTOR’s building level service was offered in small group format, pulling him out at the expense of other academic subjects. It was not a mandated service incorporated into the child’s IEP and there was no assurance that REDACTED would qualify from year to year. Assessments did not occur until the beginning of the school year and, as a result, services did not begin at the start of the school year. At no time did the Parent possess any clarity as to whether REDACTED would even qualify for these building level services until they were offered. Nowhere is the LLI program articulated within the four corners of the IEP.

The Courts have made it clear that an IEP must be evaluated prospectively as of the time of its drafting. Retrospective testimony that the school district would have (emphasis ours) provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding (R.E. vs. the New York City Dep’t of Education, 694 F.3rd 167 [2012]). The R.E. court further stated, “In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” Ibid. This is exactly the situation at bar. The Parents had no assurance that REDACTED would be eligible for this service at the time the IEP was drafted and, therefore, could not rely upon these services.

With regard to REDACTED’s RGR instruction, this too was not specifically an individualized service, although INSTRUCTOR indicated that instruction was, in fact, differentiated. Nevertheless, during the RGR sessions, a full 7-8 minutes of REDACTED’s 20-minute session was devoted to assessment. Tr. at 157. The remaining 12 minutes of instruction occurred in a small group paradigm with only some individualized instruction at best. Clearly, the remaining 12 minutes of REDACTED’s session in which individualized attention was spread among other students on a 3 to 5-day basis was not the kind of intensive one-to-one instruction both Drs. REDACTED and REDACTED recommended. Exhs. 20 at 10; 5 at 9. Given the distractions inherent within group instruction, the efficacy of such an approach for REDACTED was questionable.

Finally, although INSTRUCTOR testified that she informally utilized the morning period to support REDACTED, both academically and emotionally, this was clearly not an IEP mandate and the strictures of R.E., supra, apply. While this was surely important for REDACTED, it was not a mandated service, nor could it take the place of formal reading instruction. Moreover, once again, it was a service which highlighted REDACTED’s deficits in front of his classmates. Although admirable, INSTRUCTOR’s morning intervention was a professional kindness, discretionary in nature. It was not an IEP mandated service.

Finally, it is clear from Psychologist’s report that REDACTED was making minimal if any progress, notwithstanding the TC levels. While the District relied upon TC scores to support its claim that REDACTED was progressing, this metric alone does not describe REDACTED’s deficits. For example, at age ten, mid-fourth grade, the REDACTED report notes, “Consistent with early and ongoing reading difficulties, REDACTED continues to demonstrate variable and relatively weak foundational reading skills..... In comprehension, minimal gains were made since last testing in August 2016.” Exh. 20 at 8.^[24] While some decoding progress was evident, REDACTED’s comprehension scores remained at the 5th percentile with a second-grade equivalence. In fact, Psychologist’s report indicates that REDACTED’s “reading comprehension abilities, when unable to reference passage, have not improved since last testing” in August 2016. Exh. 20 at 9. Beyond the cognitive issues exhibited by the child, Psychologist noted that REDACTED’s ability to function within the classroom was further compromised by his REDACTED and related sequelae. As a result, Psychologist now recommended a small, full-time special education class within a small, therapeutic school specializing in teaching children with language-based disabilities.” Exh. 28 at 8.

Indeed, Psychologist’s supplemental report dated June 12, 2018 and presented to the June 13, 2018 CSE specifically observed that REDACTED had not experienced appropriate progress “with the current teaching approach and level of academic support.” He added, “He [REDACTED] requires placement in a small, structured, full-time special education classroom in a special education school Specifically, REDACTED needs a more restrictive environment that provides both individual and small group instruction that can adequately address his literacy, language-based and REDACTED needs.” Exh. L.

This opinion is echoed Psychologist’ 2016 neuropsychological assessment. In his 2016 report, Psychologist specifically addressed the District’s position that REDACTED’s TC scores indicated progress with his literacy skills. His report indicates that, notwithstanding the progress suggested by improving TC scores, the child was stagnating academically in several respects. Referencing the TC scores, he stated, “.... This raised a centrally important question; namely, how can apparent literacy progress (“D” level to “I” level) during second grade be reconciled with score declines in the above areas [sight word identification, phonological decoding, silent reading fluency, reading comprehension]. The answer to this question lies in the fact that, in order to demonstrate stability in standardized metrics, REDACTED must not only retain his previous skills, but must also augment his toolbox at a rate consistent with developmental expectations. This raised the possibility that REDACTED has made gains in literacy development but has not done so at a sufficient rate to achieve standard score stability.” Exh. 5 at 8.

Indeed, Psychologist indicated that by 2016, there had been a considerable deterioration in the child’s performance, including regression in basic reading mechanics and comprehension. While he agreed that the TC scores suggested growth, this progress was deceptive as the child was scoring worse on all other test metrics. Tr. at 1402-1403. Significantly, the only individuals who observed consistent progress were employed by the District. Neither the Parent, Psychologist nor Psychologist observed this progress within the community, suggesting that whatever new skills REDACTED had obtained, were not generalized to other environments. Even INSTRUCTOR testified that REDACTED’s skills remained inconsistent and REDACTED required prompting and look-backs. Tr. at 149. Given this scenario, one must accept the general educational principal that a skill which is not generalized and retained across environments has not truly been acquired.

In math, the January 31, 2017 IEP indicates that REDACTED was utilizing multiple mathematical strategies independently without manipulatives in order to solve addition and problems. Exh. 6 at 14. By May 2018, however, the Teacher Progress Summary indicates that REDACTED no longer demonstrated automaticity with regard to basic number facts, a finding confirmed by Psychologist. Exh. 24 at 8; 28 at 8. This is no different that Psychologist’ report in 2016 indicating that, “REDACTED demonstrated nearly identical computational skills [although] math fluency had progressed.... Math reasoning appeared less well developed in relation to his March 2016 evaluation and more closely resembled the results of his March 2014 evaluation.” Exh. 5 at 8. While some number facts may have been accessible to REDACTED, it is clear that his ability to manipulate numbers effectively was faltering.

In the matter at bar, the IEP provisions, absent adequate individualized and small-group instruction, did not fulfil the District’s “substantive obligations under the IDEA” to formulate a program which was likely to produce progress. Repeatedly advised by at least two neuropsychologists that REDACTED required individualized reading instruction as well as other academics presented within a small, structured environment, the District persistently relied upon a growing patchwork of reading and ICT services which, nevertheless, did not offer the sustained one-to-one instruction REDACTED needed. By February 2018, Psychologist reported that while REDACTED had evidenced minimal gains since 2016 in reading comprehension. Exh. 20 at 8. The clinician further noted that REDACTED was still approximately two grade levels below in most academic areas and required a “small, full-time special education class within a small, therapeutic school.”

Beyond this, the evidence indicates that the sensory overload for REDACTED throughout the day was more than he could handle and, as a result, multiple accommodations were instituted. Exh. 21; Tr. at 1310. Some of these accommodations included self-isolating morning and dismissal protocols. An additional suggestion that REDACTED be allowed to leave class early was ultimately rejected by the Parent as she believed the child was already spending excessive time outside the classroom. In fact, Ms. REDACTED, Dr. REDACTED, and the child’s neuropsychologists all agreed that the functional abilities of a student with noise sensitivities, as reflected by Dr. REDACTED’s REDACTED Evaluation, would definitely be impacted within a large, noisy environment and that an FM unit should be recommended for such a student. Tr. at 449-450; Exh. 21, passim. Nevertheless, when the use of an FM unit was suggested, both the District psychologist and Parent expressed concern that the unit might traumatize REDACTED further, given his extreme sensitivity to appearing different. Tr. at 1183. Although an FM unit was ultimately recommended, it could not compensate for the lack of a small classroom and, as suggested by the District’s psychologist, may have engendered further emotional distress for REDACTED

Finally, for REDACTED, the incorporation of a smaller ICT special education class within a larger general education class did not translate into the support of a self-contained, literacy-based classroom whose peers were all similarly profiled with executive and social-emotional deficits. Consequently, the child’s “trivial advancement” should not have been unexpected (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]). REDACTED was simply a victim of the “soft bigotry of low expectations.” The Program Recommendation for 2018-2019/ Related Services

While speech and language services were offered within the March 2018 REDACTED Evaluation, the recommendations were not adopted by the CSE and it is unclear whether this evaluation was obtained at the request of the Parent or District. Cf Exh. 21 at 8 and Exhs. 24, 28. If the REDACTED Evaluation was underwritten by the District, one wonders why the CSE would not adopt its recommendations, where possible. Clearly, the evaluation recommended more therapy than what was provided on the child’s IEP. Although a speech/language evaluation is referenced within the 2018-2019 IEPs, it was not entered into evidence and, obviously, I cannot draw any conclusions about its content.

Again, Psychologist’s report is referenced in the 2018-2019 IEP. The neurological report specifically indicates that “REDACTED demonstrated a poor ability to understand and respond to increasingly complex directions, largely due to misinterpreting details presented... REDACTED also struggled to understand and interpret orally presented sentences that make comparisons, identify location or direction, specify time relationships include serial order or are expressed in passive voice.” Exh. 224 at 8. While the child’s expressive language appeared more intact, the clinician noted that “REDACTED displayed difficulty with organization of language which impacted his efficient formulation of sentences. He also had trouble holding onto and repeating increasingly complex sentences.” Ibid.

In fact, Dr. Therapist testified that REDACTED’s language deficits were so great that she frequently asked him to draw pictures as a way of expressing his feelings. Tr. at 788, 861-862. Likewise, Dr. REDACTED observed that REDACTED exhibited impaired auditory comprehension, such that his ability to understand the spoken message fell at the 5th percentile. She noted that the child had trouble recalling details and inferring answers, findings consistent with both neuropsychological reports. Exhs. 5, 20, 21 at 7. Given the facts at bar, one individualized 30-minute session per 6-day cycle along with a second 30-minute small group session in a 6-day cycle was inadequate for a child with REDACTED’s profile.

Significantly, while Psychologist concurred with the recommended accommodations, modifications and recommendations, he disagreed with the manner in which services were provided. Tr. at 1420. For example, while the witness agreed with the need for small group remedial reading, he opined that the alternate day 40-minute group class was inadequate for REDACTED Tr. at 1420. Similarly, the ad hoc morning sessions with INSTRUCTOR were inconsistent with his recommendations. Rather, Psychologist believed that REDACTED required a full-time intensive language-based classroom and curriculum which offered daily individualized literacy instruction in a language enriched classroom. Tr. at 1446. By this time, Psychologist had assessed the child three times and testified that, academically, there had been “little traction.” Tr. at 1339. Ultimately, the clinician recommended the Parents retain a different independent neuropsychologist as he believed the District was ignoring the reports from REDACTED. Tr. at 1339-1340, 1231-1232.

The child’s IEPs additionally recommend one (30 minute) period of individualized counseling per six-day cycle along with one (30 minute) period of small group counseling, also provided once per six days. While Dr. Therapist testified that this may have been adequate for a child who was already in an appropriate educational setting, the psychotherapist opined that the ICT class did not comport with REDACTED’s needs. Consistent with Psychologist, the witness indicated that the frequency of service was not as important as the context in which services were offered. Referencing the District’s counseling recommendation, Dr. Therapist observed that the District’s classroom size, absence of a social skills curriculum and lack of interaction between staff and REDACTED during unstructured times (i.e. recess and lunch) created an ill-advised infrastructure which would only exacerbate REDACTED’s social dysfunction. Tr. at 822-827. Although she believed District personnel genuinely wanted to help REDACTED through his sadness and frustration, his emotional needs simply could not be met within their infrastructure. Tr. at 803-804. REDACTED was simply being tasked with interpreting multiple social cues simultaneously while receiving little to no instruction as to how to do so. Tr. at 809.

For example, while Social Worker was providing REDACTED with various social strategies, she did so within the confines of her office, absent the opportunity to intervene in real time on the playground or in the lunchroom. REDACTED was then expected to independently transfer skills learned in Ms. Social Worker’ office across environments. Dr. Therapist opined that during these unstructured times, REDACTED would have benefitted from the guidance of a trained professional such as a behavioral therapist, special education teacher, student aide or speech provider. Although this was not offered, Dr. Therapist indicated that many public-school districts utilized a push-in model to provide counseling during these stressful times. Tr. at 829.

A second concern reflected the reactive manner in which social skills were being taught. Dr. Therapist testified that REDACTED was simply learning how to respond to a problem after it occurred, rather than how to interpret social cues and avoid problems before they arose. Tr. at 831. Although she and Ms. Social Worker collaborated frequently, the scope of her intervention was constrained by what could be offered within the confines of Ms. Social Worker’ office. Indeed, the therapist-child model may not have been the most effective for REDACTED as the January 31, 2017 IEP indicates, “REDACTED willingly attends individual counseling sessions but typically does not participate in an active and meaningful way. If he is questioned or prompted to talk, he will not engage in conversation and often says, ‘I don’t want to talk about it,” regardless of the topic.” Exh. 6 at 8.

Although strategies were furnished to REDACTED, his efforts in unstructured settings were unsupported by the presence of trained personnel. In the absence of a dedicated social skills curriculum, REDACTED lacked the tools to interact appropriately with his peers. This was simply a reflection of the District’s program, one in which social-emotional growth was not prioritized and personnel assignments reflected expectations for normed behavior. Thus, Dr. REDACTED testified, “at recess time, children were expected to be able to interact with one another without having a problem understanding each other. REDACTED was not capable of that. He couldn’t interact with other children and he couldn’t properly understand what they were intending when they spoke.” Tr. at 835.

Given all of the above, I find that the District stands in abrogation of its duty to provide REDACTED with FAPE during the 2018-2019 school year.

Point II: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the June 12, 2019 IEP reasonably calculated to confer an educational benefit upon REDACTED during the 2019-2020 school year?

Sufficiency of Evaluations

As the cognitive, perceptual, executive, speech/language, behavioral and social-emotional measures on the June 12, 2019 IEP were largely adopted from the 2018-2019 IEPs, there is no reason to repeat and re-analyze the data. Exhs. 31, 24, 28, 33. There were, however, two new reports in addition to an observation conducted by Psychologist on March 5, 2019.^[25] These updated evaluations will be reviewed briefly. Having evaluated the child previously in 2013, 2014 and 2016, Psychologist now provided an updated assessment at the start of REDACTED’s 2018-2019 school year at Private School. Exh. 30. This was subsequently utilized at the 2019-2020 IEP convene.

At the outset, Psychologist’ report reiterated the child’s strengths in intellectual reasoning, processing speed, working and verbal memory while highlighting REDACTED’s deficits in novel problem-solving, executive function, visual-motor integration and understanding spoken paragraphs. The child additionally continued to exhibit behavior consistent with REDACTED, Obsessive-Compulsive Disorder, REDACTED Disorder, REDACTED Disorder and Generalized REDACTED Disorder.^[26] Exh. 30 at 12. Beyond this, REDACTED demonstrated specific learning disorders with impairment in reading, math and written expression. Significantly, REDACTED remained two years behind grade level despite having had the opportunity to repeat a grade. Ibid.

Several achievement tests were performed and many indicated improvements, particularly in the KTEA-3 assessment of oral reading of single words and decoding. Exh. 30 at 6. However, a significant decrease in arithmetic reasoning with language-based problems (i.e. word problems, charts, translation of narrative information into a mathematical task) was evident. Updated measures of executive functioning reflected impaired and borderline abilities with set-shifting, cognitive fluency and planning. In describing REDACTED’s speech/language abilities, Psychologist reported, “REDACTED continues to present with formidable language challenges.... As was the case during his early 2018 evaluation,^[27] REDACTED encountered significant difficulty grasping semantic relationships, even when opportunities were available for repetition.” Exh. 30 at 9. In reading, the child continued to demonstrate pronounced delays in phonological decoding with significant dysfluency. As a result of poor decoding skills, reading mechanics remained “an effortful proposition that consumes significant resources and leaves few remaining resources for accurate comprehension.” Exh. 30 at 12.

In terms of behavioral function, both Parents completed social-emotional assessments including the Child Behavioral Checklist and Multidimensional REDACTED Scale for Children - 2nd Ed. Similarly, Ms. instructor, the child’s Focus teacher, completed the Teacher’s Report Form (hereinafter referenced as the “TRF”), an instrument measuring problem behavior along multiple domains. While the Parents reported elevated levels of REDACTED, depression, REDACTED, defiance and hyperactivity, Ms. instructor’s assessment reflected similar concerns in milder form. Likewise, Psychologist observed that REDACTED’s REDACTED was exacerbated at the commencement of his new school year, an expected development as the child was now introduced to an entirely new set of academic and social demands at Private School. Thereafter, his March 2019 observation^[28] described a far less anxious child who appeared more comfortable with his peers and within the academic setting. Although REDACTED continued to require extensive scaffolding and struggled with on-task performance, he was able to engage with classwork and follow along. Exh. O.

Again, Psychologist opined that the child continued to require a small, specialized language intensive program which offered both academic and social-emotional intervention. He based his opinion upon a “confluence” of challenges, to wit: (1) REDACTED’s central REDACTED disorder, (2) robust delays in reading,^[29] math and written fluency secondary to various disorders and REDACTED and (3) REDACTED’s fragile emotional profile. Tr. at 1344. In this manner, he testified that REDACTED’s language deficits and REDACTED deficiencies degraded REDACTED’s ability to assimilate academic material, a condition exacerbated by the noise and distraction inherent within an ICT class of at least 20 students. Tr. at 1342. As a result of these academic struggles, REDACTED’s REDACTED and frustration levels would peak. All of this was denominated in the June 12, 2019 IEP. Tr. at 1330-1332; Exh. 31, passim.

In addition to Psychologist’ report, Focus teacher instructor provided a teacher progress summary on June 12, 2019. She described a fragile child who cried at his interview and expressed negative feelings of defeat and poor self-esteem. She noted that REDACTED’s transition to Private School was initially very difficult as the child had learned to engage in school resistant and avoidant behaviors. Tr. at 984-984, 987-988. Specifically, REDACTED perseverated frequently about calling his mother, going home, complaining about physical ailments and removing himself from the classroom. Tr. at 989. When these behaviors occurred, REDACTED would not be present for classwork which would generate further REDACTED about missed assignments. Consequently, personnel needed to focus on REDACTED’s emotional status before addressing academics. This included furnishing REDACTED with strategies for approaching schoolwork, managing failure and persevering in the face of frustration. By the spring of REDACTED’s first year at Private School, Ms. instructor testified that the child was not “looking to run away and hide anymore,” and had begun to take “ownership” of his school responsibilities and behavior. Tr. at 995, 998.

Academically, Ms. instructor reported that REDACTED was utilizing the multi-sensory Orton-Gillingham protocol to which he was very responsive. REDACTED had now mastered targeted letters, vowel sounds, digraphs and beginning/end blends. Tr. at 1003. In writing, REDACTED finally mastered the alphabet, perfecting letter formation, sizing and directionality. Letter reversals were rarely evident. While the student had progressed with his ability to write a cogent, grammatically correct sentence, REDACTED continued to work on improving more sustained writing efforts. Exh. 31 at 5.. REDACTED was additionally growing in his ability to apply spelling rules and had developed a greater inventory of sight words and one-syllable words. Tr. at 1015-1018. In sum, Ms. instructor noted that REDACTED had an excellent academic year as personnel was spending much less time addressing his social-emotional needs. Tr. at 1006-1007, 1013; Exhs. S, T. Significantly, while District personnel reported that REDACTED already possessed many of these foundation skills, Ms. instructor indicated that they were not consistently applied. Alternatively, many of the child’s handwriting deficits were now unacceptable in fifth grade but had been minimized by REDACTED’s former teachers.

REDACTED’s executive deficits were additionally improving through guided use of organizational strategies such as prioritizing, structured note-taking, color-coding, use of daily trackers/planners and graphic organizers. By keeping two binders, REDACTED was able to access current materials without over-stuffing his binder and losing track of his assignments. Moreover, the child was learning to self-advocate in a meaningful way. Rather than decompensating, engaging in avoidant behaviors and expressing a sense of total confusion, REDACTED was learning to break down and analyze the specific areas in which he needed help. Tr. at 1021. When this occurred, REDACTED’s teachers were able to address their intervention in a more targeted way by offering strategies to address REDACTED deficits such as identifying key words, slowing the pace and using visuals to reinforce comprehension. Tr. at 1021.

While some progress was evident in math, this remained an area of weakness for the child. REDACTED continued to rely upon his fingers when performing math operations and was reluctant to approach new topics. The child required constant drilling with the use of educational supports and continued to struggle with word problems. Exh. 31 at 6. As the year progressed, REDACTED’s nihilistic self-talk decreased, but remained a barrier to his academic growth, particularly in math.

The Program Recommendation for 2019-2020/ The Class

Again, the program recommendation for the 2019-2020 school year is largely identical^[30] to that offered by the District during the 2018-2019 school year. However, given the presence of some new evaluative material, I will address this in context with the program offered.

The Courts have clearly stated that, “modeling an IEP after the prior year’s IEP with appropriate changes is a sensible practice as long as it is not done reflexively and without consideration of the student’s individual circumstances” (A.R. and K.R. v. Katonah Union Free Sch. Dist., 2019 U.S. Dist. LEXIS 203446 (SDNY 2019). Likewise, courts have held that a clear similarity between IEPs does not translate into the absence of FAPE.

In the matter at bar, I do not believe the CSE offered the 2019-2020 IEP in a reflexive and unreasoning manner. It is clear from the testimony of District witnesses that personnel was very fond of REDACTED and deliberated in a thoughtful and caring manner. Rather, given the constraints of the fixed programming offered by the District, the CSE continued to provide the best program they could with the limitations at hand. Other than the ICT class, there was simply no alternative small class paradigm for a child like REDACTED

Both Psychologist and Psychologist were unequivocal in their consistent and long-standing recommendation for a small, structured full-time special education class in a special education school. Both believed REDACTED’s downhill spiral was a reflection of a program that could not meet his academic, social and behavioral needs. Psychologist’s report is clear. He states, “REDACTED’s behavioral-emotional dysregulation are (sic) secondary to his longstanding academic struggles and ongoing peer conflicts. His “acting out” is not deliberate. He has no mal-intent and is not emotionally disturbed. The increase in intensity and frequency of REDACTED, avoidance, low interest in school, emotional fragility and challenging behaviors appear to be a ‘cry for help,’ not uncommonly seen in students who have not felt adequately supported and understood by his educators. REDACTED exhibits a miserable attitude for attending school and is feeling defeated and unmotivated. These effects are all directly related to his poor academic performance, learning differences and poor social-emotional development.” Exh. L at 1; Tr. at 1352.

Clearly, Psychologist’ opinion was aligned with this approach as he affirmed that a District placement at this point was “ill-advised” and “a step in the wrong direction.” Tr. at 1352. Specifically, he noted that notwithstanding the District’s claims to the contrary, cumulative standardized testing indicated that REDACTED was falling further and further behind his peers. In an environment which could not comprehensively address the student’s language, REDACTED, executive and social-emotional deficits, Psychologist testified that this gap would only widen. As REDACTED was finally growing educationally and emotionally, the neuropsychologist opined that the Private School placement should remain in effect.

In fact, even psychotherapist THERAPIST observed that REDACTED was noticeably happier in the new environment and complained of fewer psychosomatic symptoms. Much of the child’s REDACTED and volatility were relieved as REDACTED viewed Ms. REDACTED and Private School as “safe havens.” REDACTED was far less distracted by compulsive ideation about negative social experiences and failing academically. Consequently, the child was more available for instruction.

Ms. instructor’s testimony is clear. REDACTED arrived at Private School with a range of disruptive avoidance behaviors which were inadvertently developed by District personnel. Rather than provide REDACTED with replacement behaviors when the child was feeling stressed, REDACTED was furnished with a range of opportunities to escape stressful classwork, fostering a learned helplessness.^[31] Tr. at 1027.

Addressing the child’s IEPs, Ms. instructor further expressed concern that multiple pull-outs for counseling, speech, reading and pre-teaching would cause REDACTED to miss excessive classwork. While she opined that these were critical services for REDACTED, she believed the format in which they were offered by the District was problematic. Consistent with both Psychologist and Psychologist, Ms. instructor indicated that REDACTED required a comprehensive program in which intervention was offered intensively throughout the day. Although she agreed that REDACTED required multiple accommodations, Ms. instructor opined that the District’s plan to implement them “discretely” further instilled a sense of humiliation within REDACTED Rather, at Private School, a school whose student profile was similar, students were encouraged to accept their learning differences and support each other without shame or embarrassment. Finally, Ms. instructor observed that there was no need for “pre-teaching” at Private School as it was incorporated into the curriculum for a class whose students reflected the same academic needs. Tr. at 1028-1029.

The Program Recommendation for 2019-2020/ Related Services

Following an REDACTED Evaluation, an FM unit was additionally recommended for the child. Nevertheless, despite this recommendation, the CSE was ambivalent about its use, given REDACTED’s sensitivity to appearing different. Tr. at 481, Exh. 11. Indeed, both the District psychologist and Parent expressed concern that an FM unit would further embarrass REDACTED Consequently, in the context of a “densely populated” classroom, REDACTED would be forced to choose between poor aural comprehension and social stigma. Tr. at 1331. Again, there are many students who are equipped with FM units who function successfully without emotional sequelae. This, however, was not REDACTED’s psychological profile.

In contrast, Ms. instructor indicated that REDACTED’s REDACTED issues were not an issue at Private School as both class and school were very small. In fact, even during lunch, students had the opportunity to avail themselves of a quiet room if they wished. Tr. at 1030.^[32] Consequently, a child with sensory issues would not need to self-isolate in an office or empty classroom. Finally, while the new assistive technology consult and recommendations were valuable additions to REDACTED’s programming, they could not replace the need for individual instruction within a small group setting. Ultimately, based upon her observations of REDACTED at Private School in small classes, Ms. instructor testified, “I don’t see how he would function,” in a class of approximately 23 students. Tr. at 1031.

In view of all of the above, including my reasoning for the 2018-2019 school year, I find that the District’s 2019-2020 IEP was not reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]) and in “light of that child’s circumstances (emphasis ours).” Endrew F. v. Douglas Cty Sch. Dist. Re-1, 137 S. Ct. 988 (2017). See also Amy Rowley v. Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., supra, and Board of Educ. of Hendrick Hudson Central Sch. Dist., supra.

Point III: Was Private School an appropriate educational placement for REDACTED during the 2018-2019 and 2019-2020 school years?

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

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

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

During the 2018-2019 and 2019-2020 school years, Private School was a small private school offering academic services in an intimate and nurturing environment. Although REDACTED’s 2018-2019 class was comprised of only two other students, both girls, he was nevertheless placed in larger, more heterogenous groups for art, gym and lunch. During the 2019-2020 school year, REDACTED was subsequently assigned to a class of six.

Based upon the testimony of Ms. REDACTED, the program correlates well with the student’s functional, academic and social needs. In furtherance thereof, the School profile includes students with language-based learning challenges, reading and writing disorders as well as executive function deficits. Many carry co-morbidities of REDACTED and dyslexia. Tr. at 906-908. REDACTED’s weaknesses are addressed daily through small group instruction and the specialized multi-sensory Orton-Gillingham reading program. This is entirely appropriate for the student who demonstrates decoding/encoding deficits in addition to difficulty with higher order cognitive demands and an REDACTED disorder.

Witnesses testified credibly that REDACTED’s ability to function appropriately in an academic setting is achieved through various accommodations and modifications. These include, at a minimum, small group and individualized instruction in which repetition, review, scaffolding and ready access to technology are offered. Check-ins are inherent within the program. REDACTED’s expository writing skills are additionally supported with graphic organizers, modeling and structuring techniques in an effort to develop and reinforce higher order literacy skills. Private School offers a language-based program in which speech/language therapy and counseling are integrated into the fabric of the program. Intervention occurs in real time so that REDACTED can process and learn on the spot without a need to generalize or recall strategies taught in the past.

Beyond this, REDACTED’s deficits in executive function are addressed throughout the day and during morning Focus periods. This is perhaps the most important part of the student’s day. The daily Focus session targets the student’s greatest area of need on a daily basis. The Focus class facilitates the student’s ability to plan, organize and prepare for homework or class. Sessions occur in a 1:1 setting and enable the instructor to ascertain the student’s command of the daily material presented. In this manner, academic struggles can be identified and addressed in a timely manner. Witnesses indicated that, when necessary, the Focus period might give priority to social problem-solving and emotional goals, rather than content area material. If REDACTED does become dysregulated, consistent real-time instructional and emotional intervention are available from his Focus teacher as well as other trained professionals. As REDACTED initially presented with severe avoidance behaviors and REDACTED, the Focus teacher’s relationship with REDACTED as a “safe haven” was particularly important. Simply stated, REDACTED needed to trust personnel before he could be emotionally accessible to the learning process. Nevertheless, the Parent’s witnesses testified uniformly that REDACTED had made significant progress during the 2018-2019 and 2019-2020 school years. This included both academic and emotional growth. Exhs. P-S.

REDACTED is a student who struggled to read social signs just as he struggled to read the written word. His dysfunctional behaviors were initially a primary component of his management needs. Ms. instructor testified that “because he was so damaged,” REDACTED first needed to learn how to be a student. Tr. at 1031. Indeed, the witness indicated that REDACTED’s emotional issues were so significant that it was initially difficult to address content area materials. In furtherance thereof, REDACTED required strategies to cope with stress, persevere when stymied, advocate for himself and accept his own responsibilities in the learning process. As a tool for achieving this, the School’s curriculum stresses the development of eight “QSIL” qualities which they believe are necessary to support life-long learning. These include areas such as resiliency, problem solving, self-advocacy, management, organization, social communication, regulation and self-reflection. REDACTED is a student who lacks insight into his behaviors and their impact upon social and academic success. The QSIL measures essentially provide the student with a “reality check” as both Private School personnel and his Parents also complete this form.

While REDACTED’s academic achievements were uneven during the 2018-2019 school year, Ms. instructor testified that REDACTED had made “tremendous” progress during his second year at Private School. Tr. at 1013. She attributed this to the fact that his emotional stability had improved during the prior year and personnel were able to address his educational needs more intensively. Tr. at 1006-1007. In spelling, REDACTED had internalized many new rules and had mastered all syllable types. In penmanship, REDACTED could now serialize and write the alphabet legibly and correctly. During the 2018-2019 school year, REDACTED began to read one syllable words consistently and had dramatically increased his inventory of sight words. Tr. at 919-920, 1015. By 2019-2020, the child was acquiring four and five syllable words, had mastered all syllable divisions and demonstrated emergent skills with prefixes and suffixes. Tr. at 1017.

Although the child has clearly made significant gains, grades, test scores and regular advancement are not the only measures by which the appropriateness of a unilateral placement may be assessed (Gagliardo, 489 F.3d at 112). For REDACTED, his ability to function appropriately within the classroom was pivotal. As the year advanced, it is clear that REDACTED’s emotional stability improved. In Private School’s supportive environment, REDACTED does not feel stigmatized by his learning differences nor does he feel ostracized by his more capable peers. In the individualized environment of Private School, REDACTED feels understood and protected by Private School personnel who recognize that REDACTED’s perceptions are his reality independent of what others think. Consequently, the child’s school resistant behaviors have largely abated and REDACTED is more accessible to the academic curriculum. Given the “totality” of Private School’s programming, I find that Private School offers an appropriate curriculum and meets the student’s needs.

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

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

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

The undisputed evidence indicates that the Parents participated willingly in their son’s CSE convenes and communicated at length about their concerns. To their credit, they did so in the absence of hostility and negativism. Tr. at 551-552. Moreover, they did not rely upon the District to meet all their expectations and independently sought outside consultations, sharing them when appropriate. The Parents authorized assessments and willingly exchanged reports and evaluations from Private School. They were proactive in seeking out therapeutic intervention for REDACTED and were strong, but collaborative advocates. Even when they began doubting the appropriateness of the District’s IEP, they continued to cooperate by suggesting a building level reading program in an effort to make its program more responsive to REDACTED’s needs. When a new middle school placement was recommended, the Parents willingly participated in an observation. By letters dated August 20, 2018 and July 22, 2019 the Parent provided the District with a 10-day written notice, memorializing their dissatisfaction with the District’s program and their intention to place REDACTED unilaterally. Exhs. I, J. The Parents did not expect grade level performance, as suggested in the School District’s Closing Brief. Exh. i at 29. Rather, they expected improvement and a lack of regression. In sum, I find there are no factors which militate against the Parent’s right to equitable relief.

Conclusion

I find that the Parents’ request for relief must be granted for both the 2018-2019 and 2019-2020 school years.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the submission of an Affidavit memorializing the exact tuition expenses borne by the Parents, at Private School during the 2018-2019 and 2019-2020 school years, the District shall reimburse the Parents directly in this amount. This payment shall represent the District’s total liability for the 2018-2019 and 2019-2020 school years pursuant to the Parents’ Due Process Complaint dated November 11, 2019. Exh. 1.

Dated: October 30, 2020

L.Botwinik Almeleh, Esq.

L. Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in attendance on April 27, 2020 For the Parent:

Law Office of REDACTED

REDACTED, Parent

REDACTED, Grandfather

For the District:

REDACTED

REDACTED District Rep.

REDACTED, Special Educator, REDACTED Sch. Dist.

INSTRUCTOR, Special Educator, REDACTED Sch. Dist.

Persons in attendance on May 6, 2020 For the Parent:

Law Office of REDACTED

REDACTED, Parent

REDACTED, Grandfather

Law Office of Brad Rosken, PLLC by Brad Rosken, Esq.

For the District:

REDACTED, Executive Dir. of Special Education, REDACTED REDACTED Union Free Sch. Dist.

INSTRUCTOR, Special Educator, REDACTED REDACTED Union Free Sch. Dist.

REDACTED, Speech and Language Pathologist, REDACTED REDACTED Union Free Sch. Dist.

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

Law Office of REDACTED

REDACTED, Parent

REDACTED, Grandfather

For the District:

REDACTED, Executive Dir. of Special Education, REDACTED REDACTED Union Free Sch. Dist.

INSTRUCTOR, Special Educator, REDACTED REDACTED Union Free Sch. Dist.

REDACTED, Speech and Language Pathologist, REDACTED REDACTED Union Free Sch. Dist.

REDACTED, Reading Instructor, REDACTED Sch. Dist.

Persons in attendance on May 15, 2020 For the Parent:

Law Office of REDACTED

REDACTED, Parent

REDACTED, Grandfather

REDACTED, Therapist

For the District:

REDACTED

REDACTED, REDACTED REDACTED Union Free Sch. Dist.

REDACTED, ELA Chairperson, P-12, REDACTED REDACTED Sch. Dist.

Persons in attendance on July 1, 2020 For the Parent:

Law Office of REDACTED

REDACTED, Parent

REDACTED, Grandfather

REDACTED, Assistant Head of School and Dean, Private School Preparatory School,

Instructor, Focus Teacher, Private School Preparatory School,

For the District:

REDACTED

REDACTED, Dir. of Special Education, REDACTED REDACTED Union Free Sch. Dist.

Persons in attendance on July 13, 2020 For the Parent:

Law Office of REDACTED

REDACTED, Parent

REDACTED, Grandfather

REDACTED, Ph.D., Clinical Associate Professor and Director of Educational Outreach, REDACTED Child Study Center

For the District:

REDACTED

REDACTED, Executive Dir. of Special Education, REDACTED REDACTED Union Free Sch. Dist.

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] Ms. REDACTED is also known as Ms. REDACTED.

[2] Alternately referenced as “building level services.” It is not a mandated special education service.

[3] Approximately scoring at the beginning of third grade

[4] Services provided both in whole and small group format

[5] New York State Dignity for All Students Act

[6] The IEP is erroneously dated May 20, 2019.

[7] REDACTED was the only boy.

[8] Clinical Evaluation of Language Fundamentals – Fifth Ed. (CELF-5)

[9] Ms. Social Worker is also known as REDACTED.

[10] Response to Intervention(RTI) is also referenced as Leveled Literacy Intervention Services (LLI) and Academic Intervention Services (AIS). RGR refers only to a classroom-based non-mandated reading protocol, offered by the special educator in the ICT classroom. Tr. at 749-750.

[11] The Fountas and Pinnell score does not specifically reflect grade level. Rather, it indicates intermediary benchREDACTED within grade. Tr. at 708.

[12] Formerly REDACTED

[13] Long Island campus

[14] QSIL is an acronym for “Qualities of a Sustainable and Independent Learner.”

[15] Eg. working simultaneously with his Chromebook, I-Pad and desktop monitor; availing himself of Google Classroom for independent work, rotating screens in order to maximize visibility of written work

[16] During this time, the Parent testified that REDACTED was removed from social studies or science class to participate in the Really Great Reading protocol.

[17] The witness testified that REDACTED experienced sensory overload in high stimulation activities and environments, such as the gymnasium, lunchroom, recess areas and assembly. Tr. at 1310.

[18] REDACTED’s reading score began at the low range of the fifth percentile to the average range of the 27th percentile. Tr. at 1350.

[19] An outcome which reflected several elements such as the nature and structure of testing (KTEA versus the progressively more difficult Gray Oral Reading Test) as well as REDACTED’s own anxieties about academic performance. Tr. at 1370-1371.

[20] A component of written language

[21] Scaled score of 7

[22] At home and in school

[23] But for the Parent’s advocacy, it appears that REDACTED would not have received the LLI service as this is considered an intervention for high-risk general education students. REDACTED was initially deemed ineligible as he was already participating in a special education program.

[24] Per the GORT-V

[25] Although admitted into the record, the observation is not referenced in the IEP document. However, Psychologist was present at the IEP meeting and presumably shared his findings with Committee members.

[26] Along with other diagnoses previously referenced in earlier evaluations

[27] Psychologist’s April 12, 2018 Neuropsychological Report

[28] Finally, although Psychologist conducted an additional neuropsychological assessment in September 2019, this document was not before the June 12, 2019 CSE and therefore, I will not address its contents as they relate to prong one of Burlington, supra.

[29] Both decoding and comprehension

[30] With the exception of a recommendation for an FM unit

[31] Indeed, upon learning that REDACTED had been excused from challenging homework during her maternity leave, Ms. INSTRUCTOR seemed upset and indicated that she would have handled this situation quite differently.

[32] The quiet room has a stock of puzzles and books etc. to accommodate students who wished to relax in a calm, low-stimulation environment.