Impartial Hearing Decision

NEW YORK STATE DEPARTMENT OF EDUCATION

In the Matter of REDACT, on behalf of the minor child, REDACT,

-against-

SED Case #: 533200

[REDACTED] Central School District

An Impartial Hearing Pursuant to Education Law §4404 and 8 NYCRR Part 200

FINDINGS OF FACT AND DECISION

Actual Record Close Date: August 24, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING

1/14/20 hearing date:

For the Student:

REDACT, Esq. (via phone)

For the District:

REDACT, Esq. (via phone)

5/15/20 hearing date: via video conference

For the Student:

REDACT, Esq.

REDACT, Parent

For the District:

REDACT, Esq.

REDACT, Director of Special Education

REDACT, Speech Language Pathologist

REDACT, Special Education Teacher

REDACT, Speech Language Pathologist

5/22/20 hearing date: via video conference

For the Student:

REDACT, Esq.

REDACT, Parent

For the District:

REDACT, Esq.

REDACT, Director of Special Education

REDACT, School Psychologist

REDACT, Special Education Teacher

REDACT, Special Education Teacher

5/28/20 hearing date: via video conference

For the Student:

REDACT, Esq.

REDACT, Parent

For the District:

REDACT, Esq.

REDACT, Director of Special Education

REDACT, CSE Chairperson

5/29/20 hearing date: via video conference

For the Student:

REDACT, Esq.

REDACT, Parent

REDACT, Speech Language Pathologist

REDACT, Director REDACT Academy

For the District:

REDACT, Esq.

REDACT, Director of Special Education

6/3/20 hearing date: via video conference

For the Student:

REDACT, Esq.

REDACT, Parent

REDACT, Ph.D.

For the District:

REDACT, Esq.

REDACT, Director of Special Education

6/17/20 hearing date: via video conference

For the Student:

REDACT, Esq.

REDACT, Parent

For the District:

REDACT, Esq.

REDACT, Director of Special Education

INTRODUCTION

On 11/22/19 I was appointed as the Impartial Hearing Officer (“IHO”) by the REDACT (“the District”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f)(1) concerning a dispute involving the special education program for REDACT (“REDACT” or “the student”) for the 2017-2018, 2018-2019 and 2019-2020 school years.

BACKGROUND

REDACT is a REDACT year old student who, at the time of the hearing, had been unilaterally placed at REDACT (REDACT) by her parents. The student is classified as multiple disabilities, the classification is not in dispute.^[1] The multiple disabilities classification is based on having a seizure disorder and cognitive delays. REDACT started receiving services through the Districts’ Committee on Preschool Education at the age of 3. The services consisted of speech therapy, occupational therapy (“OT”) and group therapy for social skills. REDACT was classified as a preschooler with a disability and was in a program with a ratio of 10:1:3 from 10/5/10 until the summer of 2012. REDACT was enrolled in kindergarten in the REDACT in a self-contained program with a ratio of 8:1:3. REDACT remained in a self-contained program while in the District. (Ex. 10, 11, 13) The Parent asserts that the District has failed to provide REDACT with a free and appropriate public education (“FAPE”) for the 2017-2018, 2018-2019 and 2019-2020 school years. The District contends that REDACT was provided with FAPE for the school years at issue.

FINDINGS OF FACT

REDACT was entering the REDACT grade at the REDACT School for the 2017-2018 school year. An annual review was held on 5/1/17 to develop an Individualized Education Program (“IEP”). The Committee on Special Education (“CSE”) met, and the meeting was attended by employees of the District as well as the REDACT Parent’s and REDACT, educational consultant. REDACT, for the REDACT grade, was in a 15:1:1 special class with speech therapy and counseling. The Parent’s had visited both the 15:1 and 8:1:3 class in the REDACT School and advised that they wanted REDACT in the 15:1 class based on conversations with her doctor. The Parent’s shared with the CSE, a private Neuropsychological Evaluation by REDACT., which was conducted based on a referral from REDACT doctor to determine her current level of functioning. The evaluation “…demonstrated some signs of decline for REDACT regarding her overall level of cognitive functioning from an already extremely low level. This seemed to be related to particular signs of decline in the area of language.” The evaluation found a full-scale IQ (“FSIQ”) of REDACT which was lower than the testing in October 2015 (which found a FSIQ of REDACT). The evaluation found some signs of mild improvement in word pronunciation, spelling, basic writing, and math skills but a mild decline in reading comprehension and a decline in word problem solving skills. The report noted that REDACT academic levels were consistently at kindergarten levels and recommended a continuation of special education services and accommodations as detailed in REDACT IEP. (Ex. 1, 10)

REDACT, a Speech language (“SL”) pathologist for the District testified that she was REDACT SL pathologist for kindergarten, 1st, 2nd, and 4th grade. REDACT was in the REDACT grade, in a 15:1:1 classroom, during the 2016-2017 school year. REDACT SL therapy was in a small group of 3:1. She was paired with students that had similar speech and language disabilities and required similar strategies and accommodations. Those students were in an 8:1:1 classroom. REDACT testified that while the students in the 15:1:1 classroom had language disabilities, she did not group REDACT with those students, because the gap in abilities was too wide for REDACT to relate to them and caused more frustration for REDACT to be with students from the 15:1:1 class. REDACT required a slower pace, simpler activities, and directions. REDACT stated that when REDACT was comfortable, she could be more successful, make an effort to communicate, take turns and engage with the other students in her SL therapy small group. REDACT was able to become engaged when the activities were more life-based in function, because she could understand them better. It was more difficult for REDACT if the activities were abstract or unfamiliar. The activities they engaged in were at a kindergarten/1st grade level. In the REDACT grade 15:1:1 class in they were doing activities that were auditory based and talking about language concepts, while REDACT still needed picture books. REDACT testified that REDACT has low language skills coupled with a cognitive disability, which impacts her ability to understand abstract concepts. REDACT needs real concrete things right in front of her, to be able to understand, and even then, she could only stay focused for a short amount of time before the mental load would be too much and she would lose attention. REDACT testified that the SL goals that were in REDACT IEP for the REDACT grade were aimed at the types of skills she would need in the 15:1:1 classroom, however, REDACT had a hard time making progress even with strategies in place and accommodations and the breaking down of information. REDACT testified that the goals were not achieved but that REDACT made slow progress, and that REDACT would regress if they did not address certain skills. They would go back and work on them again. REDACT needed a lot of practice and repetition to remember how she was supposed to answer questions and approach an activity. In their small group they would spend a month delving into a topic that a teacher might be able to accomplish in a couple of days. REDACT testified that they kept going back and repeating and relearning language skills using different activities. REDACT testified that REDACT made small incremental growth and instead of trying to speed up her growth they were working on strategies to build up her abilities. (t. 30-40, Ex. 22)

REDACT testified that she crafted the goals for the 2017-2018 IEP. There were 3 SL goals: to retell factual information through written text or talk about an event or situation; increase language skills by demonstrating an understanding of curriculum concepts and/or vocabulary; and demonstrate the ability to persist in communication, ask and answer question, repair breakdowns, (i.e. repeat and ask for clarification) and to self-advocate when needs help or change of setting. REDACT testified that the first goal, to retell a fact, was a reduction from the prior year’s goal and that it would be an achievable goal for REDACT. The second goal was to address her receptive language skills and address the fact that REDACT is still at a level where she needs to understand vocabulary words rather than going to higher level language tasks. The third goal was to address the fact that REDACT was shutting down in the classroom and needed to work on self-advocacy and to ask for help when she did not understand. The IEP also recommended SL therapy 2x30 small group. REDACT testified that a small group was a good way for REDACT to work on her language skills with peers, so she could use it as a real-life application. REDACT did not believe that REDACT needed individual SL therapy, because she had the skills to participate in a small group and needed to work on those skills. Further, in a 1:1 setting REDACT testified that she felt it would make REDACT more prompt dependent and reliant on the therapist breaking things down. Also REDACT felt that REDACT enjoyed the small group and needed time to listen and not always be the focus. REDACT testified that she was aware that REDACT had a private tutor for math and reading. She did not interact with the tutor directly but did receive information from the special education teacher. REDACT believes that the special education teacher and the tutor were collaborating. (t. 40-47, 64-68, 75-81 Ex. 1)

The CSE, at the 5/1/17 IEP meeting, discussed eligibility for the New York State Alternate Assessment (“AA”). REDACT explained that AA is an acknowledgment that a student is having difficulty with the curriculum and the academic requirements for that grade year and even when it is broken down, they still have significate delays in comparison to their peers. They do not take state assessments and the special education teacher provides an alternate assessment. One where it can measure growth of the student against the student’s own skills and the student can show they are learning within their own educational environment. REDACT, CSE chairperson, testified that AA was discussed based on REDACT significant deficits and cognitive ability in addition to her adaptive functioning and low communication skills, as well as difficulty accessing grade level curriculum. The Parents and their educational advocate expressed concerns about AA and stated their position that it should not be considered at that time. REDACT testified that the father wanted REDACT to participate in a program that was state assessed, so that she could obtain a high school Regents diploma. REDACT testified that she thought AA was appropriate for REDACT, because she really struggled in the 15:1:1 class and it was hard for her to understand what was going on. There was a huge gap between REDACT level and abilities and those of the other kids even with it broken down for her to a much simpler level. REDACT testified that REDACT needed to be measured against REDACT to see how she was learning and growing. REDACT can make progress, but she needed to be able to practice the skills and keep them at a slower pace. The Parents advised that they had visited the 15:1 class and the 8:1:3 class. The Parents wanted REDACT to continue in a 15:1 classroom The school staff expressed a lot of concern at the recommendation of a 15:1 class for the following year based on the lack of progress seen during the 2016-2017 school year in the 15:1:1 class. The 15:1 class was recommended for the 2017-2018 school year with the addition of a 1:1 teaching assistant (“TA”) who would assist REDACT with academics, navigation through the building and in following directions and routines throughout the day. The TA would be another layer of support for REDACT and with that additional support it was hoped that it would help her in being successful in the 15:1 classroom. The CSE was to reconvene after the 1st marking period to review REDACT performance in the 15:1 classroom. Extended school year was recommended as well as SL 2x30 small group (5:1) and Psychological Counseling Services (“Counseling”) 1x30 small group (5:1). The Parents agreed with the CSE recommendation. (t. 48- 50, 53-56, 59-70, 478-482, Ex. 1)

REDACT testified that she was REDACT special education teacher and case manager for the REDACT grade in a 15:1 class. REDACT requested a CSE meeting which was held on 11/6/17.^[2] REDACT stated that she requested the meeting after working with REDACT and having several meetings with the Parents. The 15:1 class was teaching REDACT grade level material and the pacing and rigor of the REDACT grade curriculum was very difficult for REDACT. REDACT struggled with the basics and everything was modified around her deficits. The CSE noted that the case manager reported that REDACT has significant academic difficulties and requires adult assistance to perform many academic tasks. All work is significantly modified and that grades are not reflective of REDACT independent performance based on how much assistance she needs to complete assignments. It is noted that REDACT shows great effort. The Parents reported that they agree that REDACT is showing significant difficulty with grade-level material. The CSE discussed an in-district 8:1:3 program but due to the population of the current class it was not found to be an appropriate placement. REDACT testified that the 8:1:3 class was not an appropriate placement because REDACT was not designated AA and the students in the class were. The determination of the CSE was to send a packet to REDACT (“REDACT”). REDACT was to remain in her current program and the family would participate in the program search. REDACT testified that REDACT was recommended because in the classroom and based on her experience they had exhausted everything to propel REDACT forward. They had in essence created a whole other program in the classroom for REDACT. (t. 101-04, 118, 127-28, 130-33 484, Ex 2)

REDACT testified that she does an informal assessment in conjunction with the IEP information on all of her students, including REDACT. The informal assessment consists of an assignment for various academic areas (writing, spelling, math) to gauge where they are academically. The informal assessment in conjunction with the IEP showed that REDACT had deficits across the board in reading, writing, spelling, and math. REDACT reading level was estimated to be on approximately the 2nd grade level. REDACT testified that though the IEP for the 2017-2018 school year noted REDACT reading level to be at kindergarten level the prior year her informal assessment placed the reading level at 2nd grade. REDACT had low comprehension and reading skills which impacted her in all other academic areas. REDACT testified that they created a different program to educate REDACT within the class. REDACT had a 1:1 TA and REDACT found that it was effective to have the T.A. working in conjunction with her. The TA was supervised by REDACT and they would go over what was needed and how she wanted the TA to approach lessons. REDACT constructed the program and the TA implemented it. In math, REDACT used lower level materials with REDACT, did a daily math drill with her, employed computer games and used a second grade math book. REDACT testified that REDACT did not like math, but they were able to get her engaged and when she had a sense of accomplishment, she would work harder. REDACT stated it was a slow process, but REDACT did respond positively. In reading, REDACT provided REDACT with an individualized reading program at the second grade level and then REDACT would transition back to the class-wide reading program. The Triumph series, a second grade level special education series was used in conjunction with strategies from the Orton-Gillingham program, along with other methods, to help with decoding.^[3] In writing, they would brainstorm ideas and then write about it. If the topic was too difficult for REDACT, she was given a topic she would enjoy such a shopping with her grandmother. The requirements were an introduction, main paragraph and a closing. There was a lot of prompting to help her through the process. REDACT was able to write and she enjoyed it, though it was not very cohesive. REDACT testified that the biggest struggle with REDACT was social, more than academic. REDACT stated that social/emotional behavior is very important in the classroom and if a student lags in that area it can affect their academic behavior. Some of the other students in the class would volunteer to go over and sit with REDACT and work with her for a while. It helped REDACT feel more comfortable with the process of learning. REDACT testified that resistance or task avoidance was related to REDACT intellectual disability and seizure disorder which can cause a student to have difficulties with conceptual issues which encompass social/emotional, academic and language issues. Issues of resistance or task avoidance were addressed by joking with REDACT and telling her that they would call Grandma. The Parents and grandmother were actively involved, and they were able to use them as leverage to get REDACT to get to work. REDACT did not believe that a Functional Behavior Assessment (“FBA”) was necessary because they were able get REDACT to respond to them. REDACT had social difficulties in that she had a hard time making friends especially developing relationships with peers, talking to people, and making eye contact. As a strategy they would talk a lot in class as a group and discuss something that had happened and use it as a learning experience. The strategy was effective for a short time with REDACT, but she could not always hold on to the strategies. REDACT could not go back and retrieve skills that were taught to address social difficulties, but they were constantly reinforcing the strategies. REDACT testified that over the 2017-2018 school year she saw improvement across the board but is was slow incremental progress. REDACT notes that it was a transition year, from REDACT school to REDACT school which can be daunting for anyone. (t. 101-19, 134-37, 144, 147-49, 163, 174 Ex. 2, 3, 23)

The CSE met on 6/5/18, as a requested review. School District personnel attended as did the Parents and REDACT, educational consultant. An annual review/placement meeting had been held on 4/5/18. At the annual review meeting it was noted that REDACT had been accepted into an REDACT class in an 8:1:1 program and that program was recommended. REDACT testified that it was her opinion that REDACT needed more individual attention and a smaller class size would afford her more individual attention. She testified that a larger class is overwhelming for REDACT and perhaps she would be in a class where her peers would be on the same level as she is and working at her pace. The program was discussed with the Parents in detail according to REDACT. REDACT testified that the father was apprehensive about the program because he wanted REDACT to get a Regents diploma and this class may not lead to one. (t. 123-25, Ex. 3)

REDACT attended REDACT grade at the REDACT in an 8:1:1 classroom during the 2018-2019 school year. REDACT was her teacher. REDACT testified that the program was basically academic, and they would try to follow the New York State Curriculum which was adapted for the students. REDACT described REDACT as quiet and very polite, she would try her best, but she required a lot of 1:1 assistance. When the class was doing REDACT grade math REDACT would have a hard time with it and they would work with her on 2nd grade math, simple addition, subtraction, money skills and simple multiplication which was mostly done on a 1:1 basis. When doing group lessons REDACT would work with the paraprofessional (“para”) or REDACT and another student. When the class was working independently, REDACT would work on math or reading with REDACT. REDACT needed to have the 1:1 assistance. REDACT is described as very quiet and compliant. They never had a behavior problem with her, she just needed individual attention to focus. REDACT testified that the District had done testing which placed REDACT function for reading at 1.4 and math at 1.8 which she found consistent with what she saw in the classroom. REDACT needed a lot of 1:1 interaction, repetition, and reteaching to help her access learning. REDACT testified that while she would not put REDACT in the regular math group, she would expose her to certain portions of it, but the concepts were too advanced for her. Socially REDACT did not interact very much with the other students, she would talk a bit with the other girl in class and played hard in gym but during recess she did not play with the other students though invited. They tried to engage REDACT in group social activities, but she did not want to participate. REDACT testified that they made modifications in reading and had REDACT participate with the class when she read to the class from a grade level book, The Lightning Thief. She did not have REDACT take vocabulary tests because the vocabulary was tough for her, though REDACT would sometimes take the comprehension quizzes. For the most part they worked on a 1:1 basis with REDACT using Read Works and independently using Reading A to Z. REDACT testified that REDACT tried but she had a hard time, though she did well at spelling. REDACT also did better at answering concrete W-H questions (who, what, when, where, why and how) but could not draw an inference. REDACT testified that inferences are a higher-level skill and REDACT had a hard time with that. Quizzes in the class were always open book tests and multiple choice. If the quiz had a choice of 4 answers REDACT test would have a choice of 2 answers because if there was too much information on the page, she would have a hard time, become stressed and just pick any answer. REDACT testified it was stressful because the REDACT grade work was above what she was able to grasp. REDACT rate of learning was slow, and they would work with her in a hands-on manner, 1:1 at a slow pace and in small bits of information. They would try not to overwhelm REDACT with too much information, take frequent breaks and read things to her. REDACT always needed an adult to work with her with any academics. REDACT did improve on her ability to log into her Chromebook independently, and copy a question off the board and answer the question with assistance. REDACT did not achieve her academic goals for the 2018-2019 school year though she tried. REDACT testified that the program was very academic and moved quickly and REDACT could not move as quickly as the other students in the class. REDACT needed to move at a slower pace. (t. 337-42, 345-56, 362-63, 410-12, Ex. 5, 24)

REDACT testified that she had several meetings with the Parents. In a meeting in November with the principal, counselor, speech teacher, REDACT and the Parents they were discussing testing. The father was on the phone and REDACT remembers that he was very upset, and it sounded like he was crying, and he said “fix my kid”. The principle jumped in and said something to the effect that REDACT was “not broken and to just love her the way that she is”. REDACT testified that the exchange broke her heart and said that REDACT is a sweet girl and she did not think of her as anything to be fixed. REDACT testified that the father’s expectations for REDACT were for her to take the Regents and go to college and she thought that it would be difficult for REDACT to be pushed that hard. REDACT testified that for REDACT it was reasonable to see her attending a REDACT continuing technical education program (“CTE”) and getting a job and being independent. REDACT stated that many special education students attend the CTE program, receive training and work in the community. (t. 357- 61)

REDACT, a speech pathologist for the District supervised a Speech and Language Evaluation, which was completed by an intern, on 10/2/18. The Peabody Picture Vocabulary test was administered, and the results indicated a severe receptive vocabulary delay which would indicate REDACT having difficulty understanding curriculum academics at her chronological age level. REDACT testified that the results would require support for receptive language skills, and that the results coincide with REDACT IQ which limits her cognitive abilities which, in turn, limit language skills. Also, the Clinical Evaluation of Language Fundamentals 5th Edition (“CELPH-5”) was administered.^[4] The CELPH-5 gives a more in-depth profile of REDACT language skills to better understand her ability to access her education. REDACT testified that REDACT scored in the extremely deficient range and this indicated that she would have a lot of difficulty not only with comprehension but the ability to express herself. This difficulty would carry over into literacy skills such as reading and writing. There was no specific test for pragmatic language administered. Pragmatic language skills were informally assessed through conversation. REDACT defines pragmatic language skills as the ability to sustain a conversation, make eye contact, on-task attention and providing context when communicating. REDACT testified that a Speech Language Evaluation was administered in 2015 and found that there was no statistically significant growth in REDACT expressive or receptive skills between 2015 and 2018. It was REDACT opinion that REDACT had plateaued as a result of her cognitive deficits. Further, she testified that REDACT limited cognitive ability is going to impact her overall functioning. (t. 181, 185-93, 208-11, 217-21, Ex. 9)

REDACT, School Psychologist for the District, testified that she conducted a psychoeducational evaluation dated 10/3/18 for REDACT. REDACT conducted a classroom observation of REDACT and found it significant that she was not able to follow classroom directions in the same way as her classmates and did not seem to understand very specific instructions by the teacher. In addition to the classroom observation REDACT administered several tests (Kaufman Brief Intelligence Test-2nd Edition, Woodcock Johnson Tests of Achievement-4th Edition, and Adaptive Behavior Assessment Scale-3rd Edition) and reviewed records. The testing revealed that REDACT functions at a lower level of cognitive ability, although some academic progress has been made. REDACT IQ composite score was REDACT. REDACT has significant deficits in both verbal and nonverbal language, which was found to be consistent with her overall IQ. REDACT testified that based on the testing she found that REDACT would learn at an extremely slow pace and would require very concrete level of instruction, needing things to be broken down and repetitive and presented in different ways. REDACT reading was found to be at a mid-first grade level (1.4) which would suggest considerably reduced expectation for independent reading. REDACT math level was between 1st and 2nd grade level (1.8). spelling and written expression was at a 2nd grade level (2.2). REDACT testified that REDACT rate of progress is going to be very slow and in her experience children with IQ’s in REDACT range have difficulty getting beyond a 2nd grade level for a number of reasons, one of which is the language involved and the need to be able to think inferentially. If something is very concrete and very relatable to REDACT life, she would learn it but as learning becomes more abstract and directions become multistep it becomes more challenging. REDACT also showed significant delays in her adaptive behavior, the skills needed to take care of yourself and relate to others. REDACT recommended that if EP continues to struggle academically in her current program, alternate options should be considered. REDACT testified that by alternate options she was referring to AA where the instruction is geared towards her independent instructional levels throughout the day and shifting some goals towards adaptive skills. (t. 258-67, 269-76, 295-97 Ex. 8)

The CSE met for a Reevaluation Review on 12/14/18. District staff attended the meeting as did the Parents and REDACT, Educational Consultant. The father expressed concern that the material being presented to REDACT is over her head and he is becoming frustrated and does not know why she does not understand certain things. District staff explained that REDACT is working as hard as she can but that she has significant cognitive delays paired with severely delayed adaptive skills. After discussion and review of testing, REDACT classification was changed to Intellectual Disability. There was no disagreement on the change of classification. The CSE discussed AA and the staff believed that this would be an appropriate recommendation for REDACT. REDACT testified that she reviewed her Psychoeducational Evaluation at the CSE meeting and agreed with the recommendation for AA. REDACT testified that given the severity of REDACT academic and cognitive deficits, language deficits and adaptive skills deficits she would benefit from her instructional program being at her level. The father wanted to delay the decision on AA and the Parents, advocate and chairperson would meet informally to discuss AA. REDACT agreed to delay the decision regarding AA in an effort to work collaboratively with the Parents. REDACT testified that she hesitates to make a decision if the Parents are adamantly opposed, and the father was adamantly opposed to designating REDACT as AA. However, she was concerned that in continuing to delay placing REDACT in an AA program, would stall her progress because she needed to be instructed at her level, as opposed to a grade level curriculum and that would be a detriment to REDACT. (t. 191-93, 275-276, 485-87, 508, Ex. 4)

REDACT testified that she met informally with the Parents and the advocate. They discussed AA and she wanted to make sure that the Parents understood what it meant for the school to so designate REDACT. They discussed program options, one of which was at REDACT and another an in-district 8:1:3 AA program. REDACT stated that the Parents toured the program with REDACT. The mother and REDACT entered the room and asked questions, but the father did not enter the classroom. REDACT testified that in much of her communication with the father, he was resistant to any type of program that did not result in a diploma for REDACT. The father testified that he, REDACT and her mother went to see the 8:1:3 class at the REDACT school. He found the class loud and chaotic. The father stated that he did not enter the classroom, because there was a student that he knew in the class who became excited when he stepped in the room and started to call out his name, so he decided to stay out of the room rather than be a distraction. The father testified that he did not like the class because it was loud and chaotic, all boys and they were autistic. The father testified that REDACT and her mother spent about 40 minutes in the class and asked questions. REDACT the teacher in the 8:1:3 class testified that she remembered REDACT and her Parents visiting the program. REDACT and her mother came in the classroom and asked some questions and she explained the program and answered the questions. The mother had a question about applied behavior analysis (“ABA”) and whether the classroom teacher was certified. The assistant principle was escorting them and answered that REDACT was not ABA certified. REDACT testified that she does use a lot of principles of ABA, such as visual schedules and motivational pieces, in her teaching. (t. 489-90, 738-40,757-59, 453, 455-56)

REDACT is a special education teacher at the REDACT School and is currently working in the 8:1:3 program. The students in her class are AA and they have severe cognitive disabilities and delays. They have communication issues, language barriers and disabilities that require highly specialized instruction and educational supports throughout the school day. In addition, they are far below grade level and have significant delays. The program has a small teacher to student ratio. There is time for whole group, small group and 1:1, but the program is based on the individual needs of the student. The students are all delayed in social skills, so the class is constantly working on social skills such as working on self-awareness, self-esteem, and ways to be appropriate in school. REDACT testified that she uses a curriculum map in the program. She looks at the individual needs of the students, their grade level age then refers to the curriculum map. It helps to guide instruction in the core subjects. It follows the New York State standards that the general population follow, but with less depth and complexity but still exposing the students to the necessary topics. Academic instruction is typically delivered in whole group lessons then break in to 1:1 or small group sessions. They are able to individualize the instruction and work on areas where students are having trouble. REDACT testified that they use motivational strategies and positive feedback and consistency to encourage students. In addition, incentives are used based on individual needs and it varies with the student. REDACT testified that they use the Edmark Functional Word Series program for reading, which uses research-based instructional strategies, in math she uses a multisensory approach and social skills are embedded throughout the day. There is a social skills teacher that comes in for a period daily. REDACT testified that for the 2019-2020 school year there were 5 students in the class, boys with autism. REDACT testified that within the program you can have all types of classifications and disabilities. (t. 420-21, 423-25, 431-42, 450-51, Ex. 26)

REDACT, is the Director of Pupil Personnel Services for the District. REDACT testified that in March 2019 the Parent requested Individual Education Evaluations (“IEE’s”) in the areas of SL and a neuropsychological evaluation. The District approved an IEE for SL at the Board of Education (“Board”) approved rate of $500. REDACT provided the Parent with a list of independent providers who meet the Board’s criteria and accept the approved rate. The Parent requested an IEE for SL at a rate of $1,500. REDACT testified that the District had recently surveyed evaluators in the area and surrounding school districts to determine a reasonable cap and found that $500 was reasonable. REDACT advised the Parent that if there were unique circumstances or additional issues to consider justifying a waiver to the cap to let the District know. REDACT testified that she never received any response from the Parent regarding justification for waiving the cap for an SL IEE. REDACT testified that the request for a neuropsychological IEE was not approved because the District had not performed a neuropsychological and did not believe it was necessary. It was the position of the District that there was sufficient evaluative information to make educational recommendations for REDACT. The District did advise the Parent that they would approve a psychoeducational IEE at a rate of $1,500. REDACT testified that she advised the Parent that if he wanted to share what he disagreed with in the District’s psychoeducational evaluation the District might be able to do some additional testing or find other ways to address the issues. REDACT testified that she did not receive any response from the Parent. The difference between a psychoeducational evaluation and neuropsychological evaluation, according to REDACT, is the neuropsychological is more comprehensive with additional subtests or tests looking at function and trying to find an additional pattern of strengths and weaknesses. The evaluators on the Districts list are independent and accept the District rate. REDACT testified that her office periodically surveys evaluators to make sure that they want to stay on their independent list, or if a Parent is seeking an amount more than the rate cap. The Parent testified that he wanted to get an SL IEE because they needed a diagnosis of where REDACT was functioning. The Parent testified that the District was saying REDACT was regressing and had plateaued, and the Parent testified that he needed something to show that REDACT could learn and that is also why he needed the neuropsychological IEE. The Parent testified that he could not find anyone to do the SL IEE for $500, stating that they do not exist. (t. 733-34,865, 867-71, 874-77, 883-87, Ex. 33, 34, 36, 39)

The CSE met for an annual review on 5/10/19. District staff attended the meeting as did the Parents and REDACT, educational consultant. The CSE discussed AA and the father advised that REDACT had recently had a neuropsychological evaluation and SL evaluation. The father believed that the evaluations may make an impact on the CSE’s decision to recommend AA. The meeting was adjourned pending the results from the private evaluations. (Ex. 5)

The Parent testified that REDACT has attended a private social skills group at REDACT since 2017. The Parents had REDACT attend for her emotional well-being and they felt that she needed to be able to communicate with her peers and was not getting help with social skills at school. The group meets on a weekly basis for an hour and it mimics a school setting. The group was run by REDACT, a licensed certified social worker. The Parent testified that one of the guidance counselors from the District recommended the group for REDACT. The Parent submitted paid invoices for REDACT for a period from 7/19/17 through 12/10/19 for a total of $4,440. The Parent testified that the CSE was aware that REDACT was going to REDACT and they thought it was a good idea. The Parent testified that they hired a tutor for REDACT, REDACT, a teacher in the District and she is certified in Orton-Gillingham. REDACT was recommended by REDACT, educational advocate. REDACT had attended the CSE meetings with the Parents. The tutoring started in 2016 and REDACT was tutored twice a week for 1 hour at $50 per hour for a total of $8,365. The Parent stated that they hired the tutor because they had asked the CSE for reading resource or reading lab and were denied. The Parent stated that the CSE was aware they had hired a tutor and agreed that REDACT needed it. The Parent tried to have the teacher collaborate with the tutor, but it was difficult. (t. 726-732, Ex D, J)

REDACT is a clinical psychologist with a specialty in neuropsychology and was designated as an expert witness in clinical psychology with a specialization in neuropsychology. REDACT first met REDACT in April of 2019 and conducted a neuropsychological evaluation on REDACT. Earlier, in March 2019 she met with the Parent.^[5] He had contacted her with concerns about REDACT academic progress and provided her with documents. REDACT reviewed a neuropsychological evaluation done in 2017, 2 school-based assessments, a psychoeducational evaluation, and a SL assessment, as well as the IEP for the 2018-2019 school year. REDACT was evaluated over 2 days, 4/9/19 and 4/10/19 using multiple tests. REDACT testified that they sought to administer norm referenced assessments, these would provide meaningful information on how a child is performing compared to other children within a narrow age range so they can determine if the child is performing above or below expectations. REDACT testified that the results of the tests with regard to IQ showed that REDACT performed in the extremely low range across her FSIQ (REDACT), her non-verbal IQ and verbal IQ which was consistent with prior testing. REDACT testified that testing revealed that REDACT does have the ability, with something that is hands-on, to learn and then repeat that information from memory which she found to be significant. The testing also revealed that REDACT doubled her recall with the benefit of repetition. REDACT testified that REDACT is capable of learning new information and the key is to provide her with repetition. Testing did reveal regression in the attention span. REDACT testified that the most notable findings were in the realm of executive functioning. REDACT was able to perform well on a card sorting test which many students struggle with and REDACT scored solidly in the average range across all measures. REDACT describes this as the key to how REDACT brain works and concluding that when she is provided with direct and explicit feedback about whether or not her response was accurate or inaccurate she has the ability to learn from that. It indicates that she is capable of learning with the accommodation of consistent evaluative feedback about her performance. It was found that REDACT demonstrated delayed reasoning skills. Though she put forth her best effort and was not easily frustrated she struggled to process information at a level consistent with her chronological age. REDACT was found to have a hard time understanding, processing, and formulating language that is appropriate to a situation or question at hand. In the social/emotional realm REDACT had no issues related to behavior or regression. REDACT was able to accomplish daily living skills related to her personal needs and gets along well with her family and is cooperative in the classroom. However, REDACT global developmental delays impede her ability to engage in relationships with others and interact with peers at an age appropriate level. REDACT testified that REDACT has a strong potential for growth which she believes is one of the main neuropsychological takeaways from the evaluation. In order to progress REDACT testified that REDACT needs an educational program that provides a high degrees of structure and repetition that is taught to mastery starting at her functional levels and using evidence-based intervention such as integrated ABA support. REDACT testified that ABA is appropriate for REDACT because she requires the degree of organization and systematic delivery of support. Also recommended was an integrated social skills curriculum to broaden her social skills and an evidence-based curriculum. In reading, REDACT recommended an Orton-Gillingham based program in either small group or 1:1, and ongoing daily intensive 1:1 SL therapy. REDACT testified that given her recommended program supports, REDACT can make meaningful academic progress. The Neuropsychological Evaluation addressed AA and found that it was not an appropriate accommodation. REDACT testified that she is not an expert in AA but she does not believe it to have standardized or functional assessments. She did not know if AA can be used to track progress for students who cannot be measured through standard achievement testing. REDACT stated that the average reading level to be able to function, read a newspaper and read instructions for a common purchase is a 6th grade reading level. REDACT testified that she found it reasonable to expect that REDACT can advance to a 6th grade reading level and have a meaningful job opportunity. Further, she believes that REDACT is capable of learning the basic skills necessary to be a productive member of society. (t. 773-74, 775- 91, 798-801, 821-840, Ex. N, 13)

REDACT is a SL pathologist and the owner of REDACT, a SL therapy private practice.^[6] REDACT testified that she conducted a SL evaluation of REDACT on 4/26/19. As part of the evaluation she spoke to the Parent first to get background and the review documents, the IEP and a psychoeducational evaluation as well as the school SL evaluation of REDACT. The school SL evaluation was reviewed to ascertain her current level of functioning. The results informed REDACT that REDACT has significant needs in speech and language, both receptive and expressive. REDACT testified that the school testing looked at syntax and grammar, but she wanted to look more at functional language and REDACT ability to communicate, problem solve and reason. REDACT reviewed the SL goals in the 6/5/18 IEP and found them lacking in comparison to her needs. REDACT testified that she took into consideration REDACT IQ in testing but that it told her more about REDACT as a learner rather than her capabilities. REDACT stated that a comprehensive evaluation consists of both formal and informal assessments. REDACT performed poorly on informal testing and she is lacking skill development and does not have strategies to mitigate her deficits. REDACT found that REDACT has significant needs in all areas of communication, receptive and expressive language and needs intensive services to be able to perform at the highest level she is capable of. REDACT agreed with prior evaluations that REDACT has a receptive and expressive language disorder. It was REDACT conclusion that for REDACT to obtain needed skills she would require intensive individual speech language services five times per week in 60-minute sessions (5x60 1:1). Based on her IQ, it was REDACT opinion that REDACT would not learn the skills she needs in a group simply through exposure. REDACT would require concentrated teaching to teach and practice skills, generalize skills and practice variations of skill and repetition. REDACT believed that REDACT could handle the 60-minute attention span which also took into consideration her processing speed. She did not feel that daily intensive SL therapy would be overwhelming for REDACT if provided correctly and that push-in services would not be appropriate as REDACT needs are very individualized and separate from what is happening in the classroom. REDACT envisioned the intensive SL therapy as an individual pull out from the classroom, but it would be up to the CSE to figure out implementation. REDACT testified that the only way that REDACT will learn new skills is in 1:1 SL therapy. REDACT testified that she has worked with children with similar IQ’s to REDACT and her experience was that progress is attainable regardless of the level, if it is delivered in an individual way to push them incrementally and matches their skill level. REDACT did not believe that group therapy was appropriate as it is not as intensive, and the students are not receiving individual instruction. Group therapy is good to practice skills but is not an intensive therapy module. The cost of the SL evaluation was $1,500 and REDACT testified that it was a competitive rate in the area. She testified that the rate is between $1,200 and $1,800 per hour. (t. 569, 571-72, 575-92, 601-02, 613- 618, 622, Ex. 3, 9, 14)

The CSE met on 6/5/18 for an annual review. District staff attended as did the Parents, REDACT educational consultant and REDACT. The committee reviewed the SL evaluation by REDACT. In addition, REDACT went over her report and recommendations. REDACT testified that they reviewed REDACT evaluation and she agreed that REDACT needed a small class but did not agree with the recommendation for ABA because it is typically used for autistic children and also REDACT does not have significant behavioral needs. REDACT stated that she had a lengthy discussion with REDACT about REDACT requiring specialized support and goals and objectives geared to her level and that based on her profile she is a student who would have significant difficulty accessing grade level material which describes a student who requires AA. REDACT testified that REDACT agreed on all points but disagreed that REDACT should be in an AA classroom. REDACT testified that she did not feel that what was being offered to REDACT was meaningfully different to what she had been offered in the past, and that on the whole the goals discussed were not appropriate because they did not reflect REDACT functional levels. REDACT testified that she attended the meeting and that she did not disagree with the testing or findings of REDACT, but she disagreed with the recommendations. REDACT testified that she attended the CSE meeting and REDACT SL evaluation was reviewed. She testified that she felt that the underlying thought behind the frequency of SL therapy recommended, was to give REDACT as much therapy as possible but it would cause her to miss a great deal of academic time by being out of the classroom and that a better use of the time would be for the SL therapist to push in to the classroom. REDACT stated that while trying to maximize her potential, we cannot cure her disability. The CSE added 1:1 SL which REDACT described as a compromise which took into consideration the concerns of the Parents. (t. 194-201, 279-281, 307-13, 490-94, 809-13, Ex. 6, 13, 14)

The committee determined that REDACT be alternately assessed and her placement would be an in-district 8:1:3 classroom with SL 5:1 2x30; SL 1:1 1x 30; Counseling 5:1 1x30; and Counseling 1:1 1x30. The determination that REDACT met the AA criteria was based on looking at her scores which were in less than the first percentile in most areas, her overall IQ of REDACT, and her adaptive skills which were in the second percentile. REDACT testified that those scores suggested that REDACT would need very specialized instruction. In view of her areas of deficit REDACT would need AA to be instructed on her level to make sufficient progress. This would include daily living skills and social skills instruction. REDACT stated that they had gone through all their programs and had exhausted their less restrictive options. The District had tried to keep REDACT in the least restrictive environment trying multiple programs, and levels of support, in trying to keep REDACT in a class that was grade assessed and working on grade level material, constantly monitoring progress and finding that her progress was not sufficient. REDACT testified that she felt AA was appropriate and in REDACT best interest. REDACT was struggling in a classroom where they were teaching grade level material which was many levels above her ability to comprehend and continuing to do so would frustrate her and not support her academic progress. The 8:1:3 program is called the REDACT (REDACT). REDACT testified that class has high staff ratio which allows for a lot of individualized instruction, social skills are worked on throughout the day with the addition of a dedicated period of social skills instruction, they have a token economy system, the students are given consistent feedback throughout instruction and the students work on their level using alternative standards. The students in the REDACT program have mainstream opportunities during lunch, recess, school functions or assemblies. In addition, there are afterschool clubs and extracurricular activities. If students in the REDACT program need additional assistance, like a TA, to help them participate the school will provide that assistance. REDACT testified that they waited until this meeting to recommend the AA for REDACT because the CSE wanted REDACT parents to be part of the decision, and it is her job as CSE chair to get a consensus from the committee. She had multiple meetings and discussions with the Parents, but it came to the point where the father was adamantly opposed to that the AA program and they had to make a decision that was in REDACT best interest. REDACT testified that the father was very clear, in his interactions with her, that he was adamantly opposed to any program that did not result in a diploma for REDACT. It was her opinion that his expectations were unrealistic because he talked about college and with REDACT deficits, she did not think these expectations were realistic. (t. 203-06, 282, 495-502 Ex. 6)

The CSE met on 8/28/20 for a requested review. District staff attended as did the Parent and REDACT educational consultant. The purpose of the review was to go over an OT evaluation. The evaluation was reviewed, and an OT Consult was recommended, 1x/month 1:1 30 minutes. REDACT testified that she attended the CSE meeting because REDACT was scheduled to be in her 8:1:3 class for the 2019-2020 school year. REDACT reviewed REDACT IEP and stated that REDACT sounded appropriate for the 8:1:3 classroom based on her deficits in reading and math, social skills and the need for highly specialized 1:1 instruction. REDACT found the goals in the IEP appropriate for the 8:1:3 classroom. The Parent testified that when he attended the CSE meeting he asked REDACT questions about the 8:1:3 class. (t. 444-46, 759, Ex. 7)

REDACT was placed at REDACT by her Parents starting in July 2019. The Parent testified that he started investigating other schools after the tour of the 8:1:3 classroom. The Parent testified that REDACT was recommended to him by their educational advocate REDACT. The Parent toured REDACT and met with the director, REDACT and was favorably impressed. The Parent wanted REDACT mother to tour the school. The Parent had REDACT records sent to REDACT. When he next met with REDACT, he brought REDACT tutor along because he values her opinion. He also brought REDACT to the school. He liked the very small class size and he got a “good vibe” from the school. The school offered ABA and a social curriculum which he liked. (t. 740-43)

REDACT testified that she is the owner and director of REDACT and a board certified behavior analyst (“BCBA”). She testified that REDACT is a school where parents can send children who had been placed in different schools and found their progress lacking. REDACT testified that one of the main missions of the school is to provide a rigorous curriculum and ABA support for students with high functioning autism. The school was originally to be one where the children were able to be taught academically and receive a high school diploma. The school is new, they are approved to 12th grade and the intent is for students to be able to receive a Regents diploma. However, REDACT testified that it is likely that not all students would be on that track and some might graduate with another type of diploma. The goal is that they leave with the skills that they need to move on in life. REDACT stated that the school is inclusive, meaning that they have some children with IEP’s and other children without IEP’s. REDACT children do not have IEP’s and attend the school. Originally the student profile was children who were academically on grade level but had significant problem behaviors in other schools. As time went on other children applied who were not on grade level but could benefit from ABA. REDACT defines problem behaviors as anything that interferes with children’s learning, not just kicking, screaming, and spitting. REDACT described the school as using personalized systems and instruction so that children can progress by using a research based curriculum. REDACT stated that the school has 4 certified teachers including herself and 9 registered behavior technicians (“technicians”) which can be considered teaching assistants. She defines a registered behavior technician as certified by the behavior analyst certification board and they must have a high school diploma and undergo 40 hours of training and pass a competency test. There were 20 students enrolled in the school for the 2019-2020 school year. There are 3 classrooms broken down as follows: 1st through 3rd grade with students ages 6-8; 4th and 5th grade with ages 9 to 10; and 6th to 8th grade with ages 11 to 13. REDACT testified that she teaches 3 hours a day of direct instruction and the rest of the day she spends mentoring the teachers and technicians and performing her duties as director. (t. 626, 630-38, 685, 687-88)

REDACT testified that she first met the Parent several months before meeting REDACT. She was unsure of the date, but it thought it may have been April or May. The first time she met with the Parent it was for an informational meeting and tour. There was a lapse of time before she heard from the Parent again. She recalled having a meeting the Parent and REDACT tutor REDACT. The tuition contract was signed by the Parents and notes that it was accepted on 6/30/19 but signed by REDACT on 6/3/19. REDACT testified that the 6/3/19 date was a typo because she would not sign and date and then accept on a different date.^[7] REDACT stated that as far as she can recall the date that they signed the contract was the first commitment by the Parents to send REDACT to REDACT. REDACT testified that she first met REDACT in July and though she had reviewed her records she based her decisions and assessments on her observations of REDACT working with her tutor. REDACT concluded that the curriculum of the school would benefit REDACT academically and socially. REDACT attended REDACT starting in the summer and then for the 2019-2020 school year. REDACT was placed in the REDACT grade classroom. There were 10 students in the class, and they were split in to 2 groups. One group of 7 were academically on grade level and the second group which included REDACT academically below grade level and the same age. The 2 students grouped with REDACT are autistic. Of the 10 students in the class 2 do not have IEP’s, REDACT has an intellectual disability and the other 7 are autistic. All the students in the classroom have reading, language and math deficits. The classroom had one full time teacher and REDACT who was in the classroom 3 hours a day each day, as well as 3 technicians. REDACT testified that she ran the ELA program in the classroom which is a large portion of the day. In the beginning of the day REDACT would work independently on her reading program and then they would have group instruction. In the beginning REDACT would need 1:1 assistance to run her program so one of the technicians would work with the other 2 students in the group and REDACT would work with REDACT for 45 minutes to an hour. They were working on a 2nd grade reading mastery program. REDACT testified that REDACT was on a 2nd grade level across the board. REDACT testified that over the course of the year she worked with REDACT and the routine remained the same every day for those 3 hours. REDACT knew what to expect and what REDACT expectations were and that she would not give REDACT the answers. REDACT testified that they did not move through a lesson unless it is completely mastered. In reading there is a mastery test after every section and REDACT must get at least 80% to move on. REDACT works on 2nd grade level in science and social studies with other special education teacher. They used the Connecting Math Concepts for math. REDACT testified that repetition helped REDACT math skills though she does not describe REDACT as very fluent in math. REDACT testified that everything they do in the school is based on ABA and the use of a positive behavior support framework and most of the students respond to general behavioral teaching procedures. The students can earn REDACT dollars which the class saves up and can use for a class trip. REDACT was able to earn the dollars by greeting people or responding to others when spoken to, which were issues for her. REDACT testified that REDACT is content to sit at her desk all day and they work to get her up and moving. REDACT stated that ABA has wide levels of applications and while it is widely used with autistic children, but it can be applied to other children. In the case of REDACT it is the use of reinforcements, knowing when to increase her motivation and the use of extinction which is a principle of ABA used to decrease off-task behavior as well a prompting, knowing how to prompt without giving the answer. REDACT called these major tactics that they use with REDACT. REDACT testified that when REDACT started at REDACT, she had poor eye contact, her greetings and response to instruction were poor, she responded poorly to questions and instructions. REDACT stated that REDACT has improved tremendously in those areas. REDACT testified that REDACT has an IESP through the REDACT and she receives SL twice a week in a group. REDACT participated in the IESP meeting and they discussed the SL evaluation by REDACT and the level of service she recommended. REDACT testified that the consensus at the meeting was that given the nature of the program and the amount of language instruction provided that the small group SL therapy was an enhancement to their program, and she found it effective. REDACT stated that the SL pathologist is amazing, and she comes to the school and works with REDACT to generalize what they work on in the classroom. REDACT testified that their report cards are based on the functional level of where the kids are. All the targets for REDACT under each category were based on where REDACT presented herself, not chronologically where she should be. Their goal is to move REDACT along at her pace and just keep making progress. REDACT testified that REDACT has made progress but that she does have significant learning and language delays and there will be times when the curriculum will slow down but that she can continue to make progress. The Parent testified that REDACT has made progress and is thriving at REDACT, wants to go to school now and is able to do her homework independently. REDACT testified to get to grade level for REDACT is a big stretch, she is a REDACT year old on an end of 2nd grade level, and to get her to her chronological level might not be the right goal for her. REDACT testified that they individualized the expectations for REDACT and base expectations on individual instructional levels though the expectations get progressively harder. (t., 638-60, 664-82,686, 690, 692, 694-96, 702, 704-09, 745-746, 740, Ex. G, L, 18)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law § 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

2017-2018 School Year

I find that based on the testimony and evidence adduced at the hearing that the District failed to provide REDACT with FAPE for the 2017-2018 school year in that the recommended program of a 15:1 graded classroom failed to provide REDACT with an appropriate education.

2018-2019 School Year

I find that based on the testimony and evidence adduced at the hearing that the District failed to provide REDACT with FAPE for the 2018-2019 school year in that the recommended program in a REDACT 8:1:1 graded classroom failed to provide REDACT with an appropriate education.

2019-2020 School Year

I find that based on the testimony and evidence adduced at the hearing that the District provided REDACT with FAPE and that the IEP and program recommended was reasonably calculated to confer an educational benefit to REDACT.

FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act] does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042. the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’)…An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132 FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. (Rowley, 458 U.S. at 203) In Endrew F. v. Douglas Sch Dist., 580 U.S. __ (2017) the Court found that an IEP should be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” The aim is to enable the child to make progress and that an essential goal of an IEP is to set out a plan for pursing academic and functional advancement.

2017-2018 School Year In the REDACT grade (2016-2017 school year) REDACT was in a 15:1:1 classroom and receiving SL therapy in a small group (3:1). REDACT, REDACT SL therapist, testified that she grouped SL with 2 students from an 8:1:1 classroom because they had similar speech and language disabilities and required similar strategies and accommodations. She did not group REDACT with students from her 15:1:1 because though those students had language disabilities the gap in abilities was too wide for REDACT to relate to them and it caused frustration for REDACT because she required a slower pace, simpler activities and directions. The goals for the REDACT grade were aimed at the skills necessary to be successful in a 15:1:1 classroom and REDACT was not able to achieve those goals though she made slow progress. The CSE met on 5/1/17 to craft an IEP for the 2017-2018 school year, REDACT grade. The CSE discussed AA at that meeting based on REDACT significant deficits and cognitive ability in addition to her adaptive functioning, low communication skills and difficulty accessing grade level curriculum. REDACT testified that she believed that AA was appropriate for REDACT because she really struggled in the 15:1:1 class and found it hard to understand. The Parents and their educational advocate were opposed to consideration of AA. The father wanted EP to remain in a graded program so that she could obtain a Regents diploma. There were 2 classes considered, a 15:1 and an 8:1:3 AA class. The Parents wanted the 15:1 class which was ultimately recommended. The school staff expressed concern at the recommendation based on the lack of progress seen in a 15:1:1 class during the current school year. A 1:1 TA was added to assist REDACT academically and the CSE was to reconvene after the first marking period. The special education teacher, REDACT requested that the CSE reconvene in the beginning of November after working with REDACT and meeting several times with her Parents. REDACT testified that she was teaching REDACT grade level material and the pacing and rigor of the material was very difficult for REDACT. The material was significantly modified around REDACT deficits and she required adult assistance for most academic tasks. The CSE reconvened on 11/7/17 and the Parents agreed that REDACT was showing significant difficulty with grade-level material. The 8:1:3 class was considered but because REDACT was not AA it was found to be inappropriate. The CSE agreed to send a packet to the REDACT program and REDACT was to remain in the 15:1 program for the rest of the school year though it was acknowledged that REDACT was struggling and the program inappropriate. REDACT testified that she saw improvement but that it was slow incremental progress. I find the evidence and testimony of the District witnesses credible. The Parent asserts that they were impeded in participating in the decision-making process regarding the provision of FAPE. There is nothing in the record to support such a finding. I find that the Parents had the opportunity to meaningfully participate. The testimony regarding the CSE meetings and recommended programs was uncontroverted by the Parent. The father’s desire for REDACT to remain in a graded program so that she could obtain a Regents diploma is also uncontroverted. The Parent asserted that the goals and the SL therapy were insufficient and for those reasons’ REDACT failed to make progress, stagnated, and regressed.^[8] I do not credit that assertion but I find that the progress made was not appropriate in light of her circumstances. If placed in an appropriate program, one reasonably calculated to confer an educational benefit, the testimony supports a finding that she could have made appropriate progress. The testimony of REDACT, REDACT, and the 5/1/17 IEP and 11/6/17 IEP (Ex. 1, 2) notes support a finding that the program was not appropriate for REDACT and one not reasonably calculated to confer an education benefit.

2018-2019 School Year The CSE recommended an 8:1:1 class in an REDACT class for the REDACT grade. REDACT testified that the father was apprehensive about the program because he wanted REDACT to get a Regents diploma and felt that the 8:1:1 class might not lead to it. REDACT, the teacher for the REDACT grade, testified that the 8:1:1 class was basically academic, and REDACT had a hard time academically and required a lot 1:1 assistance. The class was at a REDACT grade level and REDACT was on a 1st or 2nd grade level. The REDACT grade work was above what REDACT could grasp and it was stressful for her. REDACT rate of learning was slow, and they would work with her in a hands-on manner, 1:1 at a slow pace and in small bits of information. REDACT testified that she met with the Parents several times and that the father’s expectations were for REDACT to take the Regents and go to college. REDACT testified that it was more reasonable to see REDACT attend a REDACT CTE program, get a job and be independent. REDACT did not achieve her goals for the 2018-2019 school year.

An SL evaluation was done on 10/2/18. The evaluation found that REDACT has a severe receptive vocabulary delay which would indicate REDACT having difficulty understanding curriculum academics at her chronological age and found no statistically significant growth in REDACT expressive or receptive skills between 2015 and 2018. A psychoeducational evaluation was done on 10/3/18 which found REDACT IQ REDACT and that based on the testing REDACT would learn at an extremely slow pace and would require concrete level of instruction, needing things broken down, repetitive and presented in different ways. REDACT testified that if REDACT continued to struggle academically AA should be considered.

The CSE met for a reevaluation review on 12/14/18. It was noted that the father was frustrated and expressed concern that the material being presented to REDACT is over her head and does not understand why she does not understand certain things. The District staff explained that REDACT is working as hard as she can, but she has severe cognitive delays paired with severely delayed adaptive skills. It was at this meeting that her classification was changed to intellectual disability. Again, AA was discussed, and the staff believed it would be appropriate. The father wanted to delay the decision on AA. REDACT, CSA chair, testified that she agreed to delay the decision regarding AA to work collaboratively with the Parents. She testified she is hesitant to make a decision if the Parents are adamantly opposed and the father was adamantly opposed to AA. She was concerned that continuing to delay placing REDACT in an AA program would stall her progress because she needed to be instructed at her level rather than grade level curriculum. The Parents toured the 8:1:3 AA program, with REDACT, the father did not enter the classroom. The mother and REDACT toured the classroom. The father testified that the room was loud and chaotic, all boys with autism and he did not like the class. I find the evidence and testimony of the District witnesses credible. The Parent asserts that they were impeded in participating in the decision-making process regarding the provision of FAPE. There is nothing in the record to support such a finding. I find that the Parents had the opportunity to meaningfully participate. The testimony regarding the CSE meetings and recommended programs was uncontroverted by the Parent. The father’s desire for REDACT to remain in a graded program so that she could obtain a Regents diploma and go to college is also uncontroverted. The Parent asserted that the goals and the SL therapy were insufficient and for those reasons’ REDACT failed to make progress, stagnated, and regressed. I do not credit that assertion, but I find that the progress made was not appropriate in light of her circumstances. If placed in an appropriate program, one reasonably calculated to confer an educational benefit, the testimony supports a finding that she could have made appropriate progress. The testimony of REDACT, REDACT, and REDACT and the 6/5/18 IEP and 12/14/18 IEP (Ex. 3, 4) notes support a finding that the program was not appropriate for REDACT and not reasonably calculated to confer an education benefit.

2019-2020 School Year The CSE met on 5/10/19 for an annual review. The CSE discussed AA and the father advised that REDACT had recently had a neuropsychological evaluation and an SL evaluation. The father believed that the evaluations may impact the CSE’s decision to recommend AA. The CSE adjourned pending the results of the private evaluations. The CSE met on 6/5/19 for an annual review. In addition to the District staff and the Parents, REDACT attended the meeting. REDACT went over her report and her findings. REDACT testified that they had a lengthy discussion with REDACT and agreed on a number of points but disagreed with her recommendations, particularly the recommendation for ABA. REDACT testified that she agreed with the testing and the findings but disagreed with her recommendations. REDACT testified that she did not believe that AA was an appropriate recommendation and that she did not feel that what was being offered to REDACT was meaningfully different from what she had been offered in the past. The private SL evaluation by REDACT was reviewed by the committee. REDACT testified that she felt that the underlying thought behind the frequency of SL therapy recommended was to give REDACT as much therapy as possible but it would cause her to miss a great deal of academic time by being out of the classroom. The committee determined that REDACT be alternately assessed and her placement would be an in-district 8:1:3 classroom which included SL 5:1 2x30; SL 1:1 1x 30; Counseling 5:1 1x30; and Counseling 1:1 1x30. The addition of the individual SL was a compromise in consideration of the concerns of the Parents. The Parent asserted that the goals and the SL therapy were insufficient. I do not credit the assertion. The goals were crafted and presented at the CSE meeting. The Parents and their advocate had the opportunity to meaningfully participate. REDACT, the 8:1:3 teacher reviewed the IEP and stated that REDACT was appropriate for the program and that the goals were appropriate for the 8:1:3 class.

The determination that REDACT met the AA criteria was based on her scores which were in less than the first percentile in most areas, her overall IQ of 56, and her adaptive skills which were in the second percentile. In the AA classroom REDACT would be instructed on her level which would include daily living skills and social skills instruction, and there is a high staff ratio which allows for a lot of individualized instruction. REDACT testified that the District had gone through all their programs and had exhausted the least restrictive options. The IDEA requires that a students recommended program must be in the least restrictive environment (“LRE”) as set forth in 20 U.S.C. §1412 (a)(5)(A). A review of that section reveals that the state must ensure the LRE to the maximum extent possible but recognizing that this is not always possible, but preferable, and that a more restrictive environment may occur when the nature and severity of the disability cannot be met in a less restrictive environment. “Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent to the student’s needs...” TM ex rel AM v. Cornwall Cent. School Dist., 752 F.3d 145 (2d Cir. 2014) There is no question that the District has an obligation to consider the Parents programming requests but they are not obligated to do so if the programs and services available would not be adequate to provide FAPE. The Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. P. v. Newington Bd. Of Educ., 546 F.3d 111, 119-20 (2d Cir. 2008) citing Oberti v. Clementon, 995 F.2d 1204, 1217-18 (3rd Cir. 1993) The record is clear that the District made efforts to keep REDACT in the LRE for the prior 2 schools years at the request of the Parents which resulted in a finding of a denial of FAPE for those school years.

The Parent asserts that the District failed to adequately consider the IEE’s in the area of SL and the neuropsychological evaluation. On 6/4/19 the CSE met to review and discuss the IEE’s, consider the Parents concerns and consider whether to recommend that REDACT be alternately assessed and recommended for the 8:1:3 classroom. In P.K. ex rel. P.K. v. Bedford Cent. School Dist., 569 F.Supp. 2d 371 (2008) the court found that “The fact that the District staff ultimately disagreed with the opinions of plaintiffs and their outside professionals does not mean that the plaintiffs were denied the opportunity to participate in the development of the IEP’s, or that the outcomes of the CSE meetings were ‘predetermined,’ A professional disagreement is not an IDEA violation.” In the instant, case the District and the Parents and their representatives each fully participated in the CSE meeting and the fact that they did not agree as to what the most appropriate program was not, as noted above, a violation of the IDEA. I credit both the testimony and evaluations of REDACT and Ms. REDACT but find that the District is not obligated to adopt their findings and recommendations but rather to consider them while crafting an IEP and recommending a program. The District did not dispute the validity of the testing and the findings, but where they differed was over the recommendations. The District believed the SL recommendations for SL therapy 5x60 was excessive and would not only cause her to miss academic time by being pulled out of the classroom it could very well overwhelm REDACT. REDACT opined that REDACT would not be overwhelmed if the services were provided correctly. The testimony of the District witnesses who worked with REDACT over the years was that REDACT can be overwhelmed with too much information and must be worked with at a slower pace with small bits of information. It should also be noted that REDACT, while at REDACT was being provided with SL therapy 2x30 in a small group and REDACT found it effective. The level of SL provided in the IESP is a reduction from that which was provided in the 6/5/19 IEP as it did not provide 1:1 SL therapy. REDACT testified that they considered the nature of the program when deciding on the level of SL services. REDACT testimony portrayed the program at REDACT as placing a great emphasis on language. I credit the testimony of REDACT, but I also credit the testimony of the District’s witnesses that their programs, including the 8:1:3 program, placed a great emphasis on language, describing them as language rich. REDACT recommended ABA support and there was testimony regarding the efficacy of providing that support to REDACT. The position of the District is that ABA is not appropriate for REDACT because she is not autistic. However, REDACT testified that while she is not certified in ABA she does use a lot of the principles of ABA in her classroom.

REDACT testified that they had waited until the 6/5/19 CSE meeting to recommend that REDACT be alternately assessed because it is her job to develop a consensus from the committee and she wanted the Parents to agree. However, the father was adamantly opposed to AA and she felt that the father’s expectation that REDACT would get a Regents diploma was unrealistic. The Parent takes issue with the characterization of the Parent as unrealistic and points to the conclusions of REDACT and REDACT that REDACT has untapped potential. While it is likely that REDACT has the potential for growth there has been no testimony supporting a finding that REDACT is likely to obtain a Regents diploma. When asked for a prognosis for REDACT if she was to receive the services recommended in the neuropsychological evaluation REDACT testified that it would be reasonable to expect that REDACT could advance to a 6th grade level and with appropriate support she could have a meaningful job and be a productive member of society. REDACT, when queried about the possibility of REDACT getting to grade level, she testified that for REDACT to get to grade level is a big stretch, noting that REDACT is a REDACT year old girl on a 2nd grade level.

The Parents opposed the 8:1:3 AA class for several reasons, not the least being that the students were all autistic boys and the class was ungraded and would not lead to a diploma. REDACT is in a class, at REDACT, with 10 students. Of the 10 students 7 students are autistic. The class is broken down in to 2 groups. REDACT is in a group with 2 other students, both autistic. REDACT testified that at REDACT they individualized the expectations for REDACT and base expectations on her individual instructional levels. As noted above it is unlikely that REDACT would get to her chronological grade level. In fact, the 8:1:3 class in district and REDACT program at REDACT are substantially similar.

I find the testimony of the District’s witnesses and evidence submitted credible. I find that the IEP developed and program recommended for the 2019-2020 were reasonably calculated to confer an educational benefit on REDACT and met her unique needs.

Reimbursement for Tutoring/Social Skills The Parent seeks reimbursement for a social skills program at REDACT for a period from 7/19/17-12/10/19 for a total of $4,400, tutoring by REDACT from 2016-2019 for a total of $8,365 and tutoring services by REDACT in the amount of $3,665 covering 2016-2017. There was no testimony offered from the tutors or the social skills provider. As such the Parent has failed to establish that any progress was attributable to the tutors or social skills provider and not the District. Further, there was no testimony that the tutors or social skills provider met the student’s unique needs. The testimony by the father that the school was aware of the tutoring and social skills group and thought it was a good idea, or that the social skills group was recommended by a District employee is insufficient. The request for reimbursement is denied.

Reimbursement for IEE’s The Parent seeks reimbursement for a neuropsychological evaluation by REDACT in the amount of $5,500 and an SL evaluation by REDACT in the amount of $1,500. In addition, they seek reimbursement for $375 that was REDACT fee for appearing at the 6/5/19 CSE meeting.

REDACT testified that the SL IEE was approved at a Board approved rate cap of $500. The Parent was provided with a list of SL providers that would accept the Board rate. REDACT advised the Parent that if there were unique circumstances or additional issues to consider justifying waiving the cap to let the District know. The Parent did not respond. The District had recently surveyed providers and surrounding school districts to ensure their Board approved rates were reasonable. The request for the neuropsychological IEE was denied because the District had not performed a neuropsychological and did not believe that it was necessary. The position of the District was that there was sufficient evaluative information to make educational recommendations for REDACT.

The New York Rules and Regulations of the Commissioner §200.5(g)(1) states that IEE”s are available to a parent at public expense “…if the parent disagrees with an evaluation obtained by the school district…” Pursuant to the IDEA and New York State Regulations a parent has a right to an IEE, if the parent expresses disagreement with an evaluation conducted by the school district 20 U.S.C. §1415; CFR 300.502; 8NYCRR 200.5(g). It is well settled that the prerequisite to a parent obtaining an IEE is a disagreement with a specific evaluation conducted by a school district. The State Review Officer, in Application of a Student With A Disability, Appeal No. 11-111 (2011), found that in the case where the District had not yet conducted the requested AT evaluation, the parent did not have the right to the requested evaluation. The right to an IEE created by 8 NYCRR 200.5(g)(1) exists once the parent disagrees with an evaluation conducted by the District.

The Parent testified that he could not find anyone to do the SL IEE for $500 and stated that they do not exist. There was no testimony from the Parent about what efforts he made that led him to the conclusion that there were no evaluators who would accept the Board cap on SL evaluations or, if he even called the evaluators on the list provided by the District. I credit the testimony of REDACT that she provided the list of independent evaluators to the Parent that would accept the Board approved list to the Parent and that the rates were reasonable.

I find that the Parent is not entitled to reimbursement of $1,500 for the SL IEE because it is above the Board approved rate cap of $500 and that no unique circumstances or additional issues to consider justifying waiving the cap were provided to the District.

I find that the Parent is not entitled to reimbursement of $5,500 for the neuropsychological IEE as the District had not performed a neuropsychological evaluation.

I find that the request for reimbursement of the appearance fee in the amount of $375 for REDACT appearance at the CSE meeting is denied. The Parent states that the CSE invited REDACT to attend. That may well be true, and there are a wide range of people with special knowledge who might be invited to attend. However, that invitation to attend does not require the CSE to pay any party to attend the meeting.

Request for Compensatory Education

As a remedy the Parents seek the equitable remedy of compensatory education. During the hearing, the parties were reminded that they must address all issues, and relief requested, as set forth in the due process complaint or they will be deemed abandoned. (t. 8, 254, 468, 553, 860). The Parent did not address the request for compensatory relief during the hearing and therefore that request is deemed abandoned.

Prong 2

Though I found the District provided FAPE for the 2019-2020 school year I will address Prong 2.

The Parent has the burden of proof, that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The Second Circuit has held that a “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 115 (2d Cir. 2007) (emphasis in original)

A parent must show that the unilateral placement afforded the student with an educational benefit but need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G v. Board of Education of Hyde Park., 459 F3d 356, at 364-65.

REDACT attended REDACT for the 2019-2020 school year. REDACT is a small private school that provides a rigorous curriculum and ABA support for students with high functioning autism but also provides services to children without IEP’s and with different disabilities. REDACT testified that the school is state approved through the 12th grade. The school is not a state approved special education school. REDACT described the school as using personalized systems and instruction so that children can progress by using a research-based curriculum. REDACT is a BCBA. REDACT was placed in a REDACT grade classroom of 10 students which was broken down in to two groups. REDACT was in a group of 3, with the other 2 students being autistic but also below grade level. REDACT testified that she worked with REDACT daily on ELA and that REDACT was at a 2nd grade level. Everything that they do in the school is based on ABA and the use of a positive behavior support framework. REDACT testified that in the case of REDACT they used ABA using reinforcements, knowing when to increase her motivation and use of extinction to decrease off-task behavior and prompting. REDACT testified that they individualized the expectations for REDACT and based the expectations on her individual instructional level. REDACT testified that REDACT made progress during the school year and that all targets for REDACT were based on where REDACT presented herself, not chronologically where she should be. I find the testimony of REDACT credible and that the program at REDACT was individualized for REDACT, she was making progress and receiving an educational benefit.

Prong 3

Though I found the District provided FAPE for the 2019-2020 school year I will address Prong 3.

The third prong of the test for tuition funding is whether the equities favor the Parent’s position or the District. The Parents and their educational advocate appeared at all CSE meetings and appear to have been actively involved in the process. Testimony from District witnesses revealed that the Parents were actively involved in REDACT education. However, there is evidence to suggest that the father had made a determination to send REDACT to REDACT as early as April 3, 2019 prior to the SL and neuropsychological IEE’s being conducted. On April 3, 2019, the father sent a School Transportation Request form to the District Transportation Coordinator noting a change in school for the 2019-2020 school year and that REDACT would be attending REDACT. (Ex. 37, 38) Two days later the Parent sent another email, in response to an email from the District regarding the change in placement. The Parent stated that he had wanted to submit the form “just in case” and had not made a decision regarding REDACT. I do not find the father credible, and this request may be why the District took the position that both the SL IEE and neuropsychological IEE were written to support a placement at REDACT. I find that the equities favor the District.

ORDER

In view of the foregoing I find that the District failed to provide FAPE to REDACT for the 2017-2018 and 2018-2019 school years; I find that the District provided FAPE to REDACT for the 2019-2020 school year; the Parents request for reimbursement for tutoring/social skills training is denied; the Parents request for reimbursement for IEE’s and an appearance fee is denied; the Parents request for compensatory relief is deemed abandoned; and the request for tuition reimbursement is denied. ^[9]

Therefore, it is hereby ordered that the Parents due process complaint is dismissed for all purposes other than the allegation that the District failed to provide FAPE for the 2017-2018 and 2018-2019 school years which is upheld.

Dated: August 31, 2020

___________________________________

Jeanne M. Keefe

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 15, 2020

1.

IEP, dated 5/1/17, 11 pages

District

2.

IEP, dated 11/6/17, 11 pages

District

3.

IEP, dated 6/5/18, 11 pages

District

4.

IEP, dated 12/14/18, 10 pages

District

5.

IEP, dated 5/10/19, 11 pages

District

6.

IEP, dated 6/4/19, 13 pages

District

7.

IEP dated 8/28/19, 13 pages

District

8.

Psychoeducational Evaluation, dated 10/3/18, 5 pages

District

9.

Speech/Language Evaluation, dated 10/2/18, 3 pages

District

10.

Private Neuropsychological Evaluation, dated 1/26/17, 13 pages

District

11.

Student Social History, dated 10/17/18, 3 pages

District

12.

School Health Report, dated 10/29/18, 3 pages

District

13.

Private Neuropsychological Evaluation, dated 4/10/19, 29 pages

District

14.

Private Speech/Language Evaluation, dated 5/16/19

District

15.

Occupational Therapy Evaluation, dated 7/25/19

District

16.

Parent 10-day Notice dated 6/10/19, 3 pages

District

17.

Prior Written Notice, dated 6/13/20, 4 pages

District

18.

Student 2019-2010 Report Card, 11 pages

District

19.

Student Progress Report, dated 1/13/20, 2 pages

District

20.

Due Process Complaint, dated 11/5/19, 10 pages

District

21.

Response to Due Process Complaint, dated 12/31/19, 7 pages

District

22.

Progress Report for 2016-2017 School Year, 5 pages

District

23.

Progress Report for 2017-2018 School Year, 3 pages

District

24.

Progress Report for 2018-2019 School Year, 9 pages

District

25.

FOR IDENTIFICATION ONLY

District

26.

FOR IDENTIFICATION ONLY

District

27.

Second Grade Report Card, 2 pages

District

28.

Third Grade Report Card, 2 pages

District

29.

Fourth Grade Report Card, 2 pages

District

30

Fifth Grade Report Card, 4 pages

District

31.

Fifth Grade Progress Report

District

A.

Letter of REDACT, M.D., dated 9/28/16, 1 page

Parent

B.

Letter of REDACT, Ph.D., dated 4/26/17, 1 page

Parent

C.

Letter of REDACT, LCSW-R, dated 11/12/19, 2 pages

Parent

D.

REDACT-Record of Payments, dated 7/19/17 thru 12/10/19, 5 pages

Parent

E.

REDACT-Speech & Language Therapy Invoice, dated 4/26/19, 1 page

Parent

F.

REDACT Invoice, dated 4/30/19, 1 page

Parent

G.

REDACT Tuition Contract, dated 6/30/19, 4 pages

Parent

H.

REDACT Invoice, dated 7/18/19, 1 page

Parent

I.

REDACT Payment Record, dated 9/1/19, 1 page

Parent

J.

Cancelled Checks for Tutoring Services by REDACT, dated 12/20/16 thru 8/26/19, 96 pages

Parent

K.

Cancelled Checks for Tutoring Services by REDACT, dated 12/21/16 thru 6/7/17, 16 pages

Parent

L.

Individualized Education Services Program (IESP), 10 pages, dated 9/5/19

Parent

M.

Class Profile, 2016-2017, 1 page

Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 22, 2020

26.

District’s Alternate Assessment Curriculum Maps, 19 pages

District

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 3, 2020

N.

Curriculum Vitae REDACT, 7 pages

Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 22, 2020

32.

Email from REDACT to REDACT, dated 2/19/19, 1 page

District

33.

Emails between REDACT and REDACT, dated 3/25/19 to 3/27/19, 3 pages

District

34.

Letter from REDACT to REDACT, dated 3/25/19, 1 page

District

35.

Expired Board Policy regarding Independent Educational Evaluations, 3 pages

District

36.

District List of Speech Language Pathologists for Independent Educational Evaluations, 1 page

District

37.

Emails between REDACT and REDACT, dated 4/8/19, 3 pages

District

38.

Transportation request form, dated 4/3/19, 1 page

District

39.

Excel Spread Sheet compiled by REDACT of IEE cost caps in neighboring school districts, 1 page

District

40.

Current Board Policy regarding Independent Educational Evaluations, 4 pages

District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I.

Statement of Adjournments and Extensions, undated, 1 page

IHO

II.

Respondent’s Post-Hearing Brief, dated 7/10/20, 25 pages

IHO

III.

Parents Closing Brief, dated 7/10/20, 31 pages

IHO

Footnotes

[1] The classification of multiple disabilities is noted on all IEP’s in evidence except for Ex. 4 which notes the classification of intellectual disability. (Ex. 4, t. 478, 487)

[2] The 5/1/17 IEP noted that they were to reconvene after the 1st marking period. The requested review held on 11/6/17 noted that the staff requested the meeting following a team meeting with the family. REDACT testified that she requested the meeting. (t. 101, Ex. 1, 2)

[3] REDACT testified that she was not certified in Orton-Gillingham. She had taken the majority of the class but missed the last class due to a family situation. (t. 147-149)

[4] The Speech and Language Evaluation in evidence notes the CELPH-5 as Preschool. REDACT testified that the preschool notation was a typo, the test given was for EP’s chronological age. (t. 188, Ex. 9)

[5] REDACT testified that she had discussed REDACT with the Parent, but he did not discuss a specific decision to place REDACT at the school. The Parent testified that he does not believe that he mentioned placing REDACT at a private school or mentioning REDACT specifically to REDACT. (t. 753, 828)

[6] The Parent testified that he got a list of SL pathologists from his attorney and REDACT was on that list. (t.753)

[7] The Parent sent an email to the District on 4/3/19 with a school transportation request form for the 2019-2020 school year noting a change of school and requesting transportation to REDACT. An email exchange over a course of days informed the Parent that the busing request would not be able to be updated until a request for records were received by the District. On 4/5/19 the Parent stated that he was submitting the form just in case and still did not know if REDACT would be attending REDACT. REDACT advised the Parent on 4/8/19 that REDACT is not a state-approved special education placement and therefore the CSE cannot recommend REDACT. (Ex. 37, 38)

[8] It should be noted that the CSE met for annual or requested reviews 8 times between 5/1/17 and 8/28/19 and at all but one or two meetings the Parents attended with REDACT, educational consultant. (Ex. 1, 2, 3, 4, 5, 6, 7)

[9] The parties were advised to be sure to address all issues, and relief requested, as set forth in the due process complaint or they would be deemed abandoned. (t. 8, 254, 468, 553, 860)