Irvington Union Free School District, Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

In the Matter of

[REDACTED] by his Parents [REDACTED] DECISION AND ORDER

Petitioners, IHRS No. 536275

-against-

[REDACTED] UNION FREE SCHOOL DISTRICT,

Respondent

[ REDACTED JUDITH SCHNEIDER, ESQ.

] Impartial Hearing Officer

Attorneys for Respondent 243 West 99 Street (6A)

Irvington Union Free School District New York, NY 10025

[ REDACTED Telephone: 347-886-3967

]

[REDACTED]

Attorneys for Petitioners

[

REDACTED]

APPEARANCES (via Google Meet Videoconference)

November 11, 2021 For Parents:

[REDACTED] Esq, Attorney

Mother

Father For District:

[REDACTED] Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED], Director Pupil Personnel Services

November 20, 2020 For Parents:

[REDACTED] Esq, Attorney

Mother

Father For District:

[REDACTED] Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED] Director Pupil Personnel Services

[REDACTED], School Psychologist

[REDACTED], School Psychologist

December 11, 2020 For Parents:

[REDACTED] Esq, Attorney

Mother For District:

[REDACTED]Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED], Director Pupil Personnel Services

[REDACTED], School Psychologist

[REDACTED], Special Education Teacher

December 22, 2020 For Parents:

[REDACTED] Attorney

Mother For District:

[ REDACTED], Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED], Director Pupil Personnel Services

[REDACTED], Special Education Teacher

January 15, 2021 For Parents:

[REDACTED] Esq, Attorney

Mother

Father For District:

[REDACTED], Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED], Director Pupil Personnel Services

January 29, 2021 For Parents:

[REDACTED] Esq, Attorney

Mother

Father

[REDACTED] Head of School For District:

[REDACTED] Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED] Director Pupil Personnel Services

February 1, 2021 For Parents:

[REDACTED] Esq, Attorney

Mother

[REDACTED] Head of School

[REDACTED]Teacher For District:

[REDACTED], Esq., Attorney

[REDACTED] Esq. Attorney

[REDACTED] Director Pupil Personnel Services

After appointment by the [REDACTED] I conducted an Impartial Hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of [REDACTED] (“the student”).The hearing was conducted remotely via Google Meet videoconference.

PROCEDURAL HISTORY

The proceeding was initiated at the request of the parents (hereinafter also “the parent”) dated February 25, 2020, received by the district on March 12, 2020. alleging district failures through the 2019-2020 School Year (Ex. III) ^[1] I was appointed Impartial Hearing Officer (“IHO”) on March 17, 2020. By amended complaint dated October 21, 2020, claims concerning the 2020-2021 SY were added. (Ex.1)

Prehearing conferences were conducted on April 13, 2920, September 28, 2020 and October 28, 2020. (Ex. IV)

Evidentiary hearings were conducted on November 12, 2020, November 20, 2020, December 11, 2020, December 22, 2020, January 15, 2021, January 29, 2021, and February 1, 2021.

The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing submissions and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.

The current compliance date is June 21, 2021. The record closed on May 5, 2020.^[2]

POSITIONS OF THE PARTIES

The parents assert violations of “Child Find” requirements of applicable law and district issuance of substantively and procedurally defective IEPs, dated January 7, 2020 and May 19, 2020, resulting in a failure to provide a FAPE for the 2019-2020 and 2020-2021. The student was unilaterally enrolled by the parent at [REDACTED] for both school years. The parents assert that [REDACTED] was appropriate and seek district funding through reimbursement. The parents assert that there is no basis in equity for denial or limitation of district funding. (Exs. II, III, 1)

The district asserts that that the student was timely evaluated, and a FAPE timely offered for the 2019-2020 and 2020-2021 SYs. It claims that the IEPs at issue are substantively and procedurally appropriate. Further it asserts that the parent’s unilateral placement was not appropriate for this student. It also asserts that equitable considerations weigh against district funding. (Ex. I)

CASES PRESENTED

Both parties submitted documents admitted into evidence at the hearing. A list of documents in the record is appended.

The district presented the testimony of the following: [REDACTED], Director of Pupil Personnel Services (“the PPS director”); [REDACTED] School Neuropsychologist (“Dr. [REDACTED]”); [REDACTED], (“Ms. [REDACTED]”), School Psychologist; [REDACTED] (Ms. [REDACTED]”), Special Education Teacher.

The parents presented the testimony of: the student’s mother (“the parent”); [REDACTED] Head of School; [REDACTED] Head of School; [REDACTED] Teacher.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A) INITIAL FACTUAL FINDINGS

The student is [REDACTED] years old and the 2019-2020 and 2020-2021 SYs are his 8th and 9th grade years, respectively. His disability classification is Other Health Impaired. (Ex. 25)

The student had been referred for evaluation by the CPSE due to concerns regarding his transition into pre-school, anxiety and poor speech articulation. May-June 2010 evaluations were conducted, and the student qualified for a CPSE IEP beginning September 2010. (T765, Ex. B, D. Ex. 21) That IEP provided a half-day special education classroom with occupational therapy (“OT”) and counseling. (T765) On March 14, 2011, after staff reported gains, supported by parent reports that the student had had a “great year,” the CPSE declassified the student effective the end of the 2010-2011 SY (preschool). (Ex. A, T62, 763)

The student received no services in kindergarten (2011-2012 SY). (T765) The student was very anxious, very difficult to engage academically and socially and slow to start reading. (T765)

In first grade (2012-2013 SY), the student received daily reading support in a small class as an intervention service. ^[3] (T767, Ex. B)

For second grade (2013-2014SY), the student again received daily specialized reading support in a small class. (T769-772, Ex. B) During 2nd grade, upon the recommendation of Dr. [REDACTED], the student’s pediatrician (“the pediatrician”), Dr. [REDACTED], a pediatric neurologist, conducted a pediatric behavioral neurology consultation on December 2, 2013, and diagnosed various learning disabilities in reading, and math, ADHD of the primary inattentive type, and an anxiety disorder “which has improved some over time.” ^[4] His recommendations included a more comprehensive evaluation and daily small group phonics-based instruction in a small group. As well as cognitive behavior therapy for anxiety. Virtually no information concerning testing instruments was provided. (Ex. D)

Immediately thereafter, an independently obtained Psychoeducational Evaluation was conducted by Dr. [REDACTED] (December 2013-January 2014). (Ex. B) She noted parent reports that the student dreaded going to school and cried in the morning, that his self-esteem had been declining and he marked himself with an F- and they were concerned about the discrepancy between a relaxed, self-confident, inquisitive and creative nature at home with anxious self-doubting, risk averse, and sometimes withdrawn tendencies at school. In cognitive testing the student attained FSIQ of 112 (High average) with 115 with extra time with “discrepant” index scores: Verbal Comprehension 121 (Superior); Perceptual Reasoning 102 (Average) with 110 (High Average) with extended time; Working Memory 116 (High Average); and Processing Speed 94 (low end of Average). “Longstanding” sensory issues with vulnerability to sensory overload and time pressure and executive functioning difficulties that impacted school performance were noted. (Ex. B)

The student’s reading teacher at that time was a literacy specialist who used the Wilson system. ^[5] Dr. [REDACTED] reported that the student had made “notable progress in learning and applying basic phonics rules” and had “clearly benefited from systematic, phonics-based instruction at school” although his decoding was still slow, effortful and lacking in automaticity. The student’s reading scores were discrepant (ranging from 76%ile to 16th %ile) with better scores for accuracy than rate.) He had solid comprehension skills providing decoding demands were limited. Dr. [REDACTED] reported that math was an area of strength although he made careless errors in computation and writing was challenging. He became avoidant if he felt criticized, that his needs were not appreciated and/or when he was asked to do things (especially independently) that exceeded his ability. (Ex. B)

Dr. [REDACTED] diagnosed ADHD-Predominantly Inattentive Presentation; Learning Disorder with Impairment in Reading; Learning Disorder with Impairment in Written Expression; Adjustment Disorder with anxiety. Her recommendations included CSE classification as OHI, continued phonics-based reading instruction 1:1 or in a small group, direct instruction in writing techniques and intermittent consultation with the school psychologist as well as various accommodations including extended time and a variety of private interventions. (Ex. B) She noted sensitivity to visual overload, erratic scanning strategies and that he occasionally lost his place while reading and also recommended the monitoring of visual tracking skills with an evaluation by a developmental optometrist if problems were noted. (Ex B at 6-7, 15)

In February 2014 the parent requested a CSE evaluation and presented the privately obtained reports (T778, Exs. B, D). District evaluations, including OT and a classroom observation, were thereafter conducted. (Ex. GG)

An Initial Eligibility Determination Meeting was conducted on March 28, 2014. (Exs. GG, HH, T778) Dr. [ REDACTED] participated in the meeting. The CSE noted that school reports specified “great progress this year in reading” as well as improved comprehension and writing and based upon formal testing and input from participants concluded that the student did not meet criteria for eligibility but referred the matter to the Section 504 Committee (“504 Committee”). The parents agreed. (Ex. GG)

On the same date, March 20, 2014, the 504 Committee convened, with Dr. [ REDACTED] as a participant and created a 504 Accommodation Plan (“504 Plan”) which provided supports including additional time to complete assignments, wait time, organizational support, help with pacing and modifications of written materials. (Ex. HH)

Dr. [ REDACTED] evaluated the student again on November 26, 2014 when he was in the 3rd grade (2014-2015 SY)( Psychoeducational Evaluation Update (“the Update”).) She stated that the school-based reading interventions previously provided had not continued in the 3rd grade.^[6] She reported that the student was having a “more positive” third grade year and that he no longer dreaded school. Unwillingness to show his work notwithstanding loss of points for that had been reported by his teacher. Dr. [ REDACTED] stated that the student’s reading rate and fluency were below grade level although other reading areas were not, that he lacked automaticity in decoding but had competent ability to comprehend until overwhelmed by decoding demands. Reading percentiles referenced ranged from 68 to 25(rate). She believed that his reading performance might have appear ed stronger than it was and that his test scores needed to be interpreted guardedly. Math percentiles referenced were 88 and 70. Dr. [REDACTED] noted a need for instruction in writing strategies. Her recommendations included various accommodations including test accommodations, and consideration of Assistive Technology (“AT’) and “resource room” support to assist with writing skills, organizational and study skills and critical reading techniques. (Ex. C) ^[7]

Dr. [REDACTED] referenced in her Update a private Speech-Language Consultation by [REDACTED], CCC-SLP, obtained on October 2014 which reported that the student, among other things, demonstrated delays and organizational weaknesses in his verbal response to conversation but did demonstrate adequate content and vocabulary. She also noted information received from a private learning specialist. ^[8] (Ex. C)

On December 19, 2014, the 504 Committee reconvened to review the student’s plan. His teacher reported that he was reading text at and above the level of most 3rd graders and that the recommended AT was being attempted but the student was not comfortable with certain aspects of it. The reading specialist reported that the student had been assessed at the end of the 2013-2014 SY as at level L/M and started the 2014-2015 SY at the M/N independent level reader and that his most recent assessment was at level Q with 99% accuracy and that he displayed good comprehension.^[9] The school psychologist reported that the student appeared more confident and had increased social interaction. The parent reported increased enjoyment level and that the earlier modification of the quantity of work rather than the quality, which was being implemented, was very helpful. It was reported that she agreed with many of staff observations. AT was discussed. The 504 Plan was modified to add various service and program accommodations and add a counseling consult for the teacher. (Ex. 3)^[10]

New York State Assessment for the 2014-2015 SY (3rd grade) reported that the student was at level 3 (proficient standards for grade) in mathematics and level 2 (partially proficient in standards for grade) in ELA. (Ex. JJ)

On June 11, 2015 the 504 Committee reconvened to develop a 504 Plan for the 2015-2016 SY (4th grade) when the student was expected to transition into another elementary school. The student’s 3rd grade teacher reported a very successful 3rd grade year with the student’s incorporation of many strategies and improvements socially, that the student had thrived academically with silent reading stronger than oral reading and was generally reading well, but that he had difficulty in staying on task when not interested in the topic. The parents agreed that progress had been made. The prior program and test accommodations were virtually all continued and a 1x20 minutes monthly group counseling session was added. (Ex. 4)

On April 28, 2016 the 504 Committee reconvened to develop a 504 Plan for the 2016-2017 SY (5th grade). The student’s 4th grade teacher reported that the student comprehended at a high level but did not enjoy writing about it, had a low reading rate, did not like to show his work in math, did more with technology than initially, did not reread work and therefore did not correct careless errors, benefited from support with organization and got along with peers. The teacher noted the importance of flexibility and that he needed to understand how the process worked and be heard. The parents reported that the 4th grade teacher had been a good match for the student. Various adjustments and additions were made to the accommodations and a weekly 1:1 30-minute counseling session was added to the monthly group session previously provided. (Ex. II)

At an “RTI Problem Solving Team Meeting” on March 31, 2017 (5th grade) after concern about student behaviors at which the parents were present, it was determined that the focus would be supporting the student to take ownership for his academics and compliance (follow through on directions and what was expected of him). It was reported that he was capable of doing more than he was accomplishing but often chose to do the minimum and was not motivated by grades, that there were behavioral concerns in connection with difficulty in taking directions in cafeteria and recess, and that there were interventions in place that were yielding positive results including various uses of technology, modification of the quantity of math problems, checklists for organization and homework strategies. (Ex. LL, T788)

On April 3, 2017, the 504 Committee reconvened to develop a 504 Plan for the 2017-2018 SY (6th grade) The student’s 5th grade teacher reported that the student was a bright and capable student and a deep thinker with a need to understand the “why’ of what he was doing, was using technology in school, had responded with a reduction in anxiety to a strategy for homework but still could not complete it in school, and that he had been absent, arrived late or left early on many days in the 5th grade which was of concern. ^[11] The school psychologist who worked weekly with student 1:1 reported that the student had a core group of friends but that it was at times a struggle to interact with adults and students, that thinking flexibly was a challenge and that support to negotiate interactions with adults was required at times. The parents reported that the student had an inability to show his work and stated concerns about increased behavior issues as work expectations increased. The 504 Committee and the parents reached consensus about the accommodation and modifications with a few changes being made. (Ex. MM) ^[12]

The student’s 5th grade report card indicated that he was meeting grade level standards in most areas and progressing toward that in the remainder (which were principally in certain Behaviors that Promote Learning and in ELA.) His teacher noted improvements over the course of the year in various areas but continued difficulty with homework and organization and that although he was able to read and comprehend grade level work his reading rate held him back. She noted student resistance to tasks he felt of little or no value and that he was most successful when presented with a challenge to grapple with. ^[13] (Ex. 5, T792-793)

New York State Assessment for the 2016-2017 SY (5th grade), given in Spring 2017, reported that the student was at level 1 (9%ile) (well below proficient in in standards for their grade) in ELA. (Ex. JJ, T794)

The student transitioned to middle school for the 2017-2018 SY (6th grade). (Ex. 16) In addition to the classroom and testing accommodations listed on his 504 Plan, the Student received daily building-level supports which included on alternate days a Developmental Reading Class and a BSP class to assist with organizational and study skills. (Exs. 16,. Exs. 8 at 5, M) BSP functioned like a resource room in that it offered academic support, executive functioning skills, check-ins, homework help, and possibly pre/reteaching in a small setting. (T306) A 5-week progress report noted that the student was using the support classes well and that it was thought his organization was improving. (Ex. 8 at13) The student later reported that the classes were helpful although school was boring and a “waste of time.” (Ex. 8 at 10)

Prior to the commencement of his 6th grade year, the parents had again referred the student to the CSE noting his increasing dislike of school and reading and writing. (Ex. 8 at 10, T248) Various evaluations were conducted by district staff in preparation for that.

A Psychological Evaluation was conducted by Dr. [REDACTED]. The student was functioning within the Average range of overall cognitive ability. Certain subtest scores were above average but overall scores were impacted by some below average individual subtest scores. Although he had several abilities that it was expected helped to support functioning in school, variabilities across measures of short-term working memory, auditory processing, long term retrieval and cognitive processing speed had potential impact on development in reading, writing and math as well as other classroom-based tasks. It was noted that auditory processing was a new relative concern to be further considered when the results of other evaluations were obtained. A [REDACTED]

Therefore, she concluded, counseling should be considered. (Ex. 8, T252-269)

An Educational Evaluation was conducted on October 26, 2017. (Ex. 9) The student was within the average range in the Academic Skills and Academic Applications clusters (45%ile and 68%ile respectively) and in the low range (7%ile) in the Academic Fluency cluster. The achievement testing showed mostly average skills with a notable weakness in areas measuring fluency which impacted his ability to keep pace in the classroom. (Ex. 9 at 7, T282) His broad reading and basic reading skills were average, and he could decode real words and nonsense words in isolation and comprehend at an average level. (T278) His broad written language and sentence writing were in the average range, his spelling was below the average range by only 1 point, and his math computation was average, but his fluency was low which impacted his overall computation skills. (T280-281) His language skills were average in almost every category, although auditory process was a relative weakness.

A Speech Language Evaluation was conducted in October 2017. (Ex. 7) Formal testing (CASL-2) showed average skills for all broad index measures and at least average skills for most subtests but for grammaticality judgement (accuracy of syntax) which was in the below average range. In aural comprehension of spoken language in a natural context (OPUS) the student was in the average range, but it was noted that his success working with aural information could be impacted by extraneous visual stimuli. Auditory processing skills testing (TAPS-3) resulted in scores mostly within the average range but struggles in two areas indicated difficult retaining information of increasing length and complexity. Various recommendations for the classroom environment were made. (Ex. 7)

An Occupational Therapy Evaluation was conducted on October 24, 2017 and it was reported that the student’s visual motor and visual perceptual skills were in the average range with significant strengths in some areas. The student’s need to have access to a chrome book for written assignments in view of handwriting difficulties including stamina was noted. (Ex. 6) The student’s OT reported to the CSE that he took a very long time to complete the test and she had recommended a Developmental Optometry evaluation to determine if there was a vision problem. (Ex. 14) Overall, language was not seen as an area of concern apart from the auditory processing issue. (T283)

A Classroom Observation in the BSP class (5 students) was conducted and showed confidence in the material but reluctance to comply with teacher methodology. (Ex. 10, T710)

A CSE review to determine eligibility had been scheduled for November 7, 2017 but was adjourned to enable an opportunity for a more thorough parental review of the evaluations. (Ex. 14, T273-275) However, district staff informed the parents of concerns resulting from the evaluations about the student’s auditory processing and visual tracking abilities. (T259, 267, Ex. 14) As a result, the parties agreed that the district would provide an auditory processing evaluation and the parent would obtain a vision report from the student’s optometrist. (T269, 276)

• • A comprehensive vision exam commenced in December 2017 and completed in March 2018 found that the student had a Teaming Disorder of his eyes, a coordination disorder that results in double vision, skipping words, rereading lines and a Focusing (Accommodation) Disorder that results in problems sustaining near vision (required for reading), and trouble switching between near and far objects (required for copying notes from the board). Near focusing lenses were recommended for all sustained near visual activities. A program of vision therapy was also recommended to enable the student to read more comfortably, pay attention and reduce the energy required for keeping his place therefore leaving more energy for actual learning. Additional time to complete assignments was recommended. ^[14] (Ex. 13)
• • An Auditory Processing Evaluation was conducted in January 2018. (Ex.11) It revealed a Central Auditory Processing Disorder with deficits in "the skills of binaural integration, as well as tasks of auditory closure.” (Ex. 11) Dr. [REDACTED] characterized it as a finding of an auditory decoding deficit in that it was taking him longer to interpret the information and therefore comprehend it. (T884) The audiologist characterized the student as a “high risk listener.” Certain environmental modifications, including trial of an FM system, as well as compensatory intervention strategies were recommended to perform optimally. (Ex. 11)
• • The CSE convened to consider eligibility on March 16, 2018. ^[15] The parents discussed a gap between the student’s intelligence and performance and that he did not seem to enjoy school. The CSE considered the various evaluations and reports from the participants which included the teacher reports that the student had improved in the BSP class that year, that the student was [REDACTED]
• • District staff suggested a return to the earlier evaluators with the recently obtained data which might explain the student’s attentional difficulties and affect the diagnoses of ADHD and learning disabilities as well as recommended supports. The CSE determined that the student did not meet the criteria for classification under IDEA but did need adjustments to the 504 Plan. The CSE recommended that an FM system be trialed, and preferential seating be provided as an accommodation. It was noted that the parents agreed with the recommendations. (Ex. 14, T291-298, 846) ^[16]
• • The 504 Committee convened on April 27, 2018 to develop a plan for 7th grade. It was reported that the student when reviewing his then current 504 Plan said that he had been challenged by homework completion but was working on time management skills and that tools and classes had supported him including chrome book and the BSP class. The student’s teachers reported notable improvement in homework completion in the prior few weeks, that there had been a positive shift in writing (although his writing was often very minimal) that modifications were provided and that, when possible, digital tools were utilized. Various modifications were discussed including reducing the quantity of math problems. It was noted that the student had had a more positive attitude to school but still did not use devices available and although urged by staff. Efforts to encourage the student to seek extra help from teachers, resisted at that time as “extra help,” were discussed. Significant growth in confidence was reported by staff. The parents reported that the middle school had been “an amazing place” for the student, that it appeared he was less resistant that year [REDACTED] The student’s resistance to using the chrome book (which could close the gap between his thinking quickness and writing slowness) at home was also reported. The student had been provided with glasses but had the teachers reported not having seen him wear them. The parents agreed that daily BSP would be a great support and consensus was reported on appropriate accommodations and modifications for the 7th grade school year which included an FM system and modifications resulting from the vision evaluation. The 2018-2019 504 Plan, however, no longer included student counseling. (Ex. 17, T201-202) The parent agreed with BSP for 7th grade. (T955) ^[17]
• • Various assessments also indicated that the student did well in 6th grade His reading teacher reported that the student “met/exceeds End -6th grade Reading Benchmarks” in both Fountas & Pinnell (F&P) and Lexile assessments, that he had evolved as a reader and shown “tremendous growth in confidence as well as ability to lead a class discussion.^[18] Developmental Reading Class instruction for 2018-2019 was therefore not recommended by the reading teacher. Both F&P and Lexile assessment indicated that the student was reading at a grade 7 level when he completed 6th grade. (Ex. 12) His Spring 2018 Aimsweb benchmark assessments, which measured vocabulary, silent reading fluency, reading comprehension, number sense fluency, number comparison fluency, concepts and applications and mental computation fluency, indicated his skills were intact and that he was at low risk for needing interventions in reading or math although he had difficulties in certain areas. ^[19] (Ex 15; T63, 73-76, 528-529, 720-721, 724-725) His 6th grade report card states he earned A’s and B’s in ELA, Science and Social Studies, a C in Math (with math teacher comments that the student knew the course work but needed to show all work in math) and an F in Spanish. ^[20] (Ex. 16)^[21] Further evidence suggests that student attendance significantly improved in the 6th grade. The report card is ambiguous and the accuracy and meaning of its specification of attendance is unknown but the parent asserts that the student had 7 absences and 23 “lateness” in the 2017-2018 SY. (Exs. II, 16).
• • About a week before the commencement of the 2018-2019 school year (7th grade), the student [REDACTED]. (T812) The [REDACTED]was not immediately diagnosed. (T814) Initially, he missed some school due [REDACTED] and the guidance counselor met with the family to develop a support plan. (T813, 956-957) In September, the student had tried to attend school for an hour or two per day, attending different classes on different days and often in the nurse’s office. (T814-816, 950)
• • After several weeks, the district was informed that the student was experiencing effects of [ REDACTED].. (T812-13, 959) Physicians initially believed the symptoms would resolve in a shorter time span and recommended limitation of participation in class activities. (Ex. K) Determination of how long [REDACTED] symptoms will last is not possible. (T845) As the term progressed the student attended less often (only about an hour.). (T 958) Various discussions, including with the parents, to identify supports and “build a plan” to help the student access classes followed. (T80-81, Ex. E)
• • The student’s schedule was modified to permit shortened school days, the excusal of late or missing assignments and a focus on high interest topics, like social studies, to help him remain engaged. (T306, 959, 154, 186, 85) The student’s symptoms grew worse and he was ultimately not able to tolerate even limited part time instruction. (T961-962). By about January 2019, the student stopped attending school at all. (T960, 963, Ex. E)
• • On October 17, 2018, the 504 Committee had met to discuss the then current [REDACTED] situation and accommodations. (Ex.18, T304) The parents reported that at that time the student was unable to perform leisure activities such as sailing and video games as well as watching his favorite tv shows, apparently due to inability to meet cognitive demands and that continued [REDACTED] testing was underway. (Ex. 18, T961) Staff discussed that numerous classes had been missed and homework assignments waived and therefore teacher understanding of the student was inhibited. His general needs were discussed, and his special education teacher stated that BSP was a critical support for the student and noted that he was able to develop his academic and social skills while completing classwork and homework assignments, addressing the student’s dislike of doing homework. All teachers believed the student would benefit from using electronic devices in various areas. The student’s learning style was discussed as was participation in an afterschool Homework Center. Dr. [REDACTED] attended the meeting and discussed the student’s particular learning style and issues. ^[22] The parent stated that Dr. [REDACTED] “got” the student and Dr. [REDACTED]’s future involvement was discussed. Modifications and accommodations were discussed, including specifications regarding counseling. Parental sharing of future [REDACTED] testing to enable appropriate future support was requested and agreed to. ^[23] (Ex. 18, T304-308) Home instruction was not discussed at that meeting. (T308)
• • After continuing incapacity to attend school at all was clear by January 2019. the district had attempted to provide home instruction (in social studies, a preferred subject, to facilitate engagement) through [REDACTED]. (T817, 962-964). However, around that time the student’s [REDACTED] specialist recommended provision of [ REDACTED] therapy which therapies exacerbated the student’s symptoms for several days after the sessions, rendering the student unavailable for home instruction as any cognitive or physical activity at the time made the symptoms worse. (T815-816, 962 965, Ex. K) Upon the recommendation of the [REDACTED] specialist, by March the parents discontinued all tutoring to allow the student to participate in therapy. (T818, 962-964, 980) The student received some 6 hours of [REDACTED] tutoring before that was put on hold. (Exs. 27, NN,T153-155) No other home instruction was received from September until May because of the student’s then significant cognitive limitations. (Ex. NN, T818-821) The student participated in [REDACTED] therapy from February through May. ^[24] (T965-66, 980)
• • At the conclusion of the 2018-2019 school year the student had not successfully completed any of his seventh-grade courses and he received no credit. (Ex. F)
• • By letter dated June 28, 2019, via fax, the student’s pediatrician, in a routine update confirming the student’s [REDACTED] situation, informed the district that his symptoms continued to limit the amount of time he could spend in classroom activities, but the time could be gradually increased as he tolerated symptoms then manifesting. (Ex. 19, T843-844) There was no specification of the amount of time then possible or of the symptoms then manifesting.
• • The student’s symptoms had precluded academic work until almost the end of the 2018-2019 SY. (Ex. K) In the beginning of June the district agreed to Math tutoring by [REDACTED]. (T967) On June 20, 2019 the parent was informed by [REDACTED] that the district had informed that no further tutoring by it was possible. (Ex. G, T967-969) ^[25] Summer tutoring had, however, already been discussed with the parent. (Exs. G, NN) In meetings in June with the parent the student’s transition to 8th grade was discussed and the parent had expressed concerns about that transition with only 504 accommodations. (T825)
• • On June 19, 2019 the parent had requested a list of topics that would be most important to cover over the summer to prepare for 8th grade including noting that a Math tutor could not cover the entirety of the year’s work, proposed that the ELA tutoring be devoted to Social Studies areas in view of the student’s preferences, and informed the district that the parents would provide Science instruction if provided with a list of the topics most important for the student to know. (Ex. 27, T827)
• • On June 20, 2019 district staff confirmed that [REDACTED] would provide Math and ELA tutoring (2 hours of online tutoring in math and the same in ELA for an 8-week period) over the summer, that overviews of district units of study would be provided to the tutoring service, as the parent had previously requested, and that log in and orientation information would be provided by [REDACTED]. ^[26] (Exs. 27, G, NN, T 86, 967, 828-829)
• • On June 21, 2019, the district expressed confidence that the summer agency would “be able to design instruction that reflected” the district’s 7th grade math and ELA curricula. (Ex. G)
• • The parents, however, did not immediately receive the information necessary to utilize the summer services. (T87)

The parent sought district assistance to obtain the [REDACTED] services by about July 4 and the PPS director communicated that appropriate arrangements had been made and instructed the parents to communicate if there was a problem. (T165, Ex. G) The parent continued to be unable to access tutoring and on July 14, 2019, the parent informed the PPS director via email to that no communication from [REDACTED] had been received and that district assistance was requested. (Ex. G) No response was received, and the PPS director testified that that she was not aware of difficulties until the request for a CSE referral was received by her. (T88, 165, 832)

On July 26, 2019, via email, the parents requested a re-referral to the CSE stating that they did not believe the student could make academic progress with only 504 supports in light of his underlying learning difficulties and [REDACTED] post-symptoms. They stated their disagreement with prior district assessments and the prior eligibility determination and requested an independent neuropsychological assessment (“IEE”) at public expense. They also stated that [REDACTED] had not been implemented “despite our repeated follow up.” ^[27] (Ex. H)

By email dated July 30, 2019, the PPS director informed the parents that she had been out of town when the email was sent and that the district agreed to the IEE. (Ex. H) The parents thereafter selected Dr. [REDACTED] to conduct it. (Ex. I, T832, 971) A social history form dated August 8, 2019 was completed by the parents after the student commenced at [REDACTED]. (Ex. 20, T97-98)

District representatives met with the parents in August to discuss the student’s return to school. The student would commence 8th grade and the district advised that the student would receive the Section 504 accommodations from the previous plan (Ex. 18), pending the referral to the CSE. (T824-826) The student was scheduled for daily participation in the BSP. ^[28] (T673-674)

By communication dated August 13, 2019, the student’s pediatrician stated that the student symptoms (diagnosed collectively as [REDACTED]) had been continuous until about 6 weeks before. No specification of current symptoms was provided. The pediatrician stated that he agreed with the parents’ request for an out of district placement. (Ex. K)

By letter dated August 20, 2019, the parents informed the district of their intention to unilaterally place the student at [REDACTED]. (Ex. M; T834) The student commenced attendance at [REDACTED] in September 2020. (T787)

• • Dr. [REDACTED] conducted her evaluation in September and October 2019. (Ex. 21) ^[29] She diagnosed: Attention-Deficit/Hyperactivity Disorder, Predominantly inattentive presentation; Auditory Processing Disorder; Developmental Coordination Disorder; Specific Learning Disorder, with impairment in reading (reading fluency), Moderate (F81.0); Specific Learning Disorder, with impairment in written expression (spelling accuracy, grammar and punctuation accuracy, clarity and organization of written expression), Moderate and Specific Learning Disorder, with impairment in mathematics (fluent calculation) Mild. (Ex. 21)
• • Dr. [REDACTED] informed the parent that her scores were “remarkably similar” to the evaluations done by the district in 2017 although she had used different tests. She concluded that the student at that time was in no better but in no worse shape than he had been in prior to the concussion. (T839) Although then current levels of achievement were, as previously, variable, Dr. [REDACTED] stated that “[n]otably, [his] scores have stayed relatively stable since his last academic evaluation in 2017, suggesting that he has kept pace with his prior levels of learning although he has not closed any achievement gaps.” (Ex. 21 at 12) She concluded that academically his performance was clearly impacted by his auditory processing difficulties, executive functioning deficits and limited fluency for academic tasks, stating that the student’s tendency to fatigue during academic tasks limited benefits from various strategies. Asserting that direct instruction targeting his underlying learning deficits had been limited, she recommended targeted interventions in reading, writing and math as well as strategies for improving his stamina for schoolwork, differentiated instruction, specific school-based accommodations, support for executive functioning and the application of strategies in various academic areas from an advisor or learning specialist. She also recommended that the parents obtain recommendations for targeted interventions for vision and auditory processing. (Ex. 21) Dr. [ REDACTED] also concluded that the “the student does not appear to struggle with anxiety, depression, or dysregulated behavior but noted a rigid thinking style and tendency to resist [REDACTED] However she noted that some of the rigidity and resistance to [ REDACTED] might be his way of demonstrating that he can no longer process information or tolerate visual/auditory stimuli. (Ex. 21 at 14)
• • At that time cognitive skills were in the average range overall with below average processing speed. The student’s phonological processing skills were very strong, and his decoding was in the average range but for decoding fluency which was low average. (T392) Math was in the average to high average range. (Ex. 21 at 23) In the writing area spelling and fluency were low average and written expression was very low. (Ex. 21-23) The student received average scores in testing for attention and impulsivity although long strings of information caused the student to slow down. (Ex. 21-21, T388, 396) Executive function ratings scales were mostly average. (Ex. 21, T383-385) The results showed parent concerns in a few isolated areas and no concerns by the student. (D21-22, T91) Behavior ratings scales did not indicate any significant social emotional concerns. (Ex. 21-23, T394-95)
• • In a December 11, 2019 treatment summary, the student’s pediatrician reported that although most of the [REDACTED] symptoms had resolved the student still had “significant photosensitivity and sound sensitivity”, required [REDACTED]. (Ex. K-4) No other symptoms or needs related to [REDACTED] were specified. The pediatrician asserted that the student’s success at [REDACTED] “underscores his need for classification as a student with a disability and accommodations due to his symptomology since [REDACTED]. Without targeted programmatic and individualized supports and instruction … [he] is not available for learning. “(Ex. K at 4)
• • The CSE convened on January 8, 2020. Dr. [REDACTED], [REDACTED] staff and the parents participated. (T446-447, Ex. 23) The parents had provided the pediatrician’s December 2019 treatment summary as well as the IEE summary and [REDACTED] summaries and stated concerns including about the student’s ability at that time to maintain a full schedule in view of his lack of “stamina” and its impact on his ability to sustain attention and complete tasks. The CSE was also informed that the student was currently presenting with sensory issues and anxiety with regard to new situations and overall classroom functioning that was impeding performance. (Ex. 23 at 9, 530, 587-588, 698, 843) The CSE determined that the student met the criteria for classification as Other Health Impaired. It recommended ICT Social Studies, ELA, Math and Science (1xdaily, 42 minutes), individual counseling (1x weekly 30 minutes) and a daily Building Support class which although not listed as part of the IEP program was noted on the IEP and discussed at the review. (T465) Modifications based upon the IEE recommendations and the most recent 504 plan were provided. (447-456, 510-511, 531-533, 555-556) The CSE recommended a truncated day with a “slow build” to full time enrollment. Specified modifications included a “transition plan” “throughout the school day” to support return to full day programming but provided no further details concerning the plan. A team meeting was also provided. (Ex. 23)
• • Shortly thereafter school psychologist [REDACTED] and [REDACTED], who was one of the student’s special education teachers and his BSP teacher and case manager, met with the building team, which included all who would be his teachers to discuss the student’s transition back to the middle school which was scheduled for the following week. (T503) They discussed the students’ [REDACTED] and the need for accommodations including, an FM system, [REDACTED]. (T466, 600) A tentative schedule was developed by which the student would commence with 2 classes, building support and social studies both taught by Ms. [REDACTED], and thereafter increase in a slow and controlled manner as the student felt comfortable (T461, 465, 466). Ms. [REDACTED] was to meet him when he arrived and escort him at his departure and ascertain how he was feeling. (T463) The plan did not include a full day program and was to be flexible depending on student experiences. The parents were not present at this meeting but were informed of the proposed plan. (T506) The plan was not reduced to a writing. (T493)
• • The student attended the following Monday, January 13, 2020, for two periods including BSP. He did not [REDACTED] and symptoms of the [REDACTED] were not observed by staff or reported by the student. (T975) He informed Ms. [REDACTED] that he was okay but provided little other feedback. (t515-516) On the second day, he attended four classes including a BSP. (T515) Teachers “marveled” at his ability to engage in discussion and he “inserted himself readily and easily into the conversation the class was having.” (T617) At the end of the day he informed Ms. [REDACTED] that he was “good” and that there was no need for her to accompany him to meet his parent, as had been previously arranged. (T515) However, that day he had informed his BSP class that he would be attending the school only until Friday and then would return to [REDACTED]. (T611, 704) He did not [REDACTED] and symptoms of [REDACTED] were not observed by staff or reported by the student. He was told and encouraged to take breaks but chose not to do so. (T615, 618, 718). All accommodations were provided and [REDACTED] in his classrooms. (T618-619,670, 700-707) The parent understood that it was “socially wonderful” but frustrating with regard to the work and that he felt out of place (T855, 857)
• • Although the student’s attendance on Wednesday and Thursday had been anticipated, the parent learned that Ms. [REDACTED] would not be present those days due to off-site obligations and she informed the district that the student would not attend on those days but that he wanted to try a full day of classes on Friday. (Ex. 26, T851-852, 860)
• • The student attended on Friday. Classes were somewhat shortened due to a geography “bee” in the auditorium in which some students competed. It was a school wide event and most of the school’s some 400 students were present as observers. Attendance was optional and the student attended. Ms. [REDACTED] positioned herself near him throughout the event to provide support if necessary. She observed nothing indicating [REDACTED] symptoms and nothing was thereafter reported to her. (T473,511) At the end of the day, the student’s mother picked him up and he reported headache, fatigue and other concerns. (T855, 857)
• • By email dated January 21, 2020, the first school day after the Friday full day, the district was informed that the student reported [REDACTED] symptoms on Friday including an inability to focus and a headache and was discouraged generally by his inability to follow the class material presented and the pace of the class as well as demands caused by the length of the day. District failure to implement various accommodations was also claimed. The parents advised the district that the student would continue at [REDACTED] (Ex. L, T534-536, 851, 853-855 860-861) The district did not respond, and no subsequent recommendations were made for the 2019-2020 SY.
• • On March 12, 2020, the Parents filed a due process complaint challenging the 2019-2020 IEP. (Ex. III)
• • On May 19, 2020 the CSE convened, remotely due to the pandemic closures, to recommend a program for the 2020-2021 SY (9th grade). No new evaluations were conducted by the district and no new evaluative material but for [REDACTED] updates were submitted by the parents. Based upon the various reports from [REDACTED] staff as well the previously received material the CSE recommended continuing the previously developed goals and added new goals to address writing and conflict resolution strategies in light of the [REDACTED] updates. The previously developed modifications and testing accommodations were continued. The CSE recommended ICT for all core subjects, with daily Resource Room (5x1), counseling (1:1, 1x30 weekly). Teacher of the [REDACTED] consultations for staff. (1x30 weekly for each) were also provided. (Ex. 25)
• • By communication dated August 20, 2020, the parents informed the district that they had not yet received the May 19, 2020 IEP or a placement recommendation for the 2020-2021SY. They stated concerns about implementation in the event of remote learning The parents again elected to place the student at for the 2020-2021 SY. (Ex. M)
• • The IEP was received on August 31, 2020. (T867) The parents received no response.
• • The parents filed an amended complaint on October 21, 2020 adding claims for the 2020-21 IEP. (Ex. 1)

B) ANALYSIS ^[30]

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held.

1) Period Prior to March 12, 2018 The initial complaint in this matter was filed on March 12, 2020. The district asserts that the Statute of Limitations (“SOL”) bars all claims arising from the period prior to March 12, 2018. (Ex. 2) Under the relevant provision of the IDEA applicable in New York a party may present a complaint which sets forth an alleged violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged violation that forms the basis of the complaint. 20 U.S.C. 1415[f][3][c] There are two exceptions: when the complaining party was prevented from requesting an impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information that was required to be provided to the parent. 8 NYCRR 200.5[j][1][i] Neither has been asserted in this matter by the parents. Further, I conclude that the evidence would not support that claim. Although the parents may now disagree with certain prior recommendations or conclusions of the district, they do not claim, and the evidence does not support any district misrepresentations. Further, the evidence supports a conclusion that the parents were provided with substantial evaluative material by the district, that they received information on an ongoing basis from district staff in the period prior to March 12, 2018 and that they are well qualified [REDACTED]. Failures to comply with various regulatory requirements in the provision of intervention services asserted by the parent (Ex. II), if such occurred, do not support a conclusion that information was withheld warranting tolling of the SOL in the circumstances here.

Accordingly, I do not consider specific parent claims concerning the educational program and services provided prior to March 12, 2018. However, I note that the evidence supports a conclusion that the student continuously received various school-based interventions from the 1st grade on and that he progressed in that period albeit not to the level the parents desired.

2) Period from March 12, 2018 a) Child Find Claims i) March 12, 2018- June 30, 2018 (2017-2018 SY)

The parents assert that the district failed in its “Child Find” obligations. The IDEA places an affirmative duty on school districts to have “in effect policies and procedures” to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. 300.111[a][1][i]; Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 245; (2009); see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements extend to "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][7]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]).

Because Child Find places an affirmative obligation on the district, the IDEA does not require parents to request that the district evaluate their child. (See Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]). “Thus, courts have held that a district’s child find duty is “triggered” when it “has reason to suspect that special education services may be needed to address that disability.” New Paltz Cent. Sch. Dist., 307 F. Supp. 2nd at 400 n.13; see also Murphy v. Town of Wallingford, No. 10-CV-278, 2011 WL 1106234 (D. Conn. Mar. 23, 2011 (“Once a school has reason to suspect a disability, the school must conduct an evaluation of the child within a reasonable time.” (internal quotation marks omitted)” J.S., 826 F. Supp 2d at 660.

In this matter, however, the CSE had convened on March 16, 2018 (6th grade) to determine eligibility. The review was at the request of the parents but delayed by the agreed upon need for additional evaluations suggested by district staff after they had reviewed their results. The CSE considered the various evaluations which included Psychological, Educational, Speech and Language, Occupational Therapy, Classroom Observation as well as the additional recommended evaluations (vision and auditory processing status.)

The student was at that time within the average range in the Academic Skills and Academic Applications clusters and mostly average skills with a notable weakness in areas measuring fluency. (Ex. 9 at 7) His broad reading and basic reading skills were average and he could decode real words and nonsense words in isolation and comprehend at an average level. (T278) His broad written language and sentence writing were average; his spelling was below average by just one point and his math computation was average although his fluency was low. (T280-281)

Optometry testing had newly diagnosed a [REDACTED]. (Ex. 13). The parent had observed those issues and stated that that could explain teacher reports of “a lot of fatigue and tiredness and losing his place a lot in reading.” (T801, 948-949) The optometry evaluator had also reported difficulty on focusing on near vision objects and switching between near point and far point, which had been complained about previously by the student and observed by the parent. (T801, 946) ^[31]

Dr. [REDACTED] testified that testing showed that the student could decode accurately but the [REDACTED] impacted fluency because he constantly needed to re-read letters, that the vision disorders also affected his reading and near point copying and that his difficulty with [REDACTED] directly linked to his performance on her testing.^[32] She concluded that although the student had the ability to decode words,

[ REDACTED]. Further, she testified that the student did not have difficulty reasoning when reading but the [REDACTED] did not allow him to [REDACTED] on what he was reading and she opined that appropriate glasses could improve fluency. (T978) ^[33]

The CSE also discussed how the auditory processing and vision deficits could impact the ADHD diagnosis and suggested a return to the evaluators who diagnosed that for their input because the processing deficit had similar symptoms and the new diagnosis could explain why it appeared the student was not paying attention and/or having trouble focusing. (T293-294, 310)

Further, the district had been providing various support services and a 504 Plan and the student’s testing at around that time showed that he was at or above grade level in benchmark assessments in reading and math by near the end of the year and indicated that he was not in need of interventions in math or reading. (Ex. 12) Additional modifications to address the newly determined visual and auditory issues, as were shortly thereafter provided by the 504 Committee, could reasonably be expected to continue or improve prior results. (Exs. 14, 17)

There was no disagreement with the determination of ineligibility from the parents at that time but rather appreciation of district identification of difficulties. (T291, Ex. 14) ^[34]

I conclude that the CSE’s determination that special education services were not required and its declination of classification at that time was reasonable. ^[35] I note that no rebutting evidence specifically disputing that determination has been submitted.

The 504 Committee convened several weeks later and notable student improvements in various areas and progress in reading was considered. Numerous modifications including addressing visual and processing issues were determined upon. (Ex. 17)

The various assessments at and around that time supported the conclusions as to progress. (Ex. 12) Benchmark assessments (F&P and Lexile) indicated that the student, then nearing the end of 6th grade, was reading at a 7th grade level. (Ex. 12) His reading teacher, who was also his English teacher, did not recommend Developmental Reading instruction for 7th grade in view of his progress. (Ex. 12) His attitude to school was improving. It was anticipated that he would enter the 7th grade with a 504 Plan and daily BSP.

I conclude that nothing occurred subsequent to the March 16, 2018 CSE meeting on eligibility occurred in the 2017-2018 SY to trigger Child Find concerns. ii) July 1, 2018- July 26, 2019

Undisputed evidence shows that as a consequence of a [ REDACTED] before the beginning of the 2018-2019 SY the student received no significant educational services during the entirety of the school year. [REDACTED] symptoms precluding virtually all academic work at home or in school, continued through sometime in May-June. (Ex. K) The district had been informed that there was no way to determine how long that condition would last.

The evidence indicates that the district was informally notified in mid-June and by the student’s pediatrician on June 28, 2019, that the student, although still limited by [REDACTED] symptoms, could spend some time in classroom activities. There was no indication of the amount of time then possible or of the symptoms then manifesting and the parents and the district were anticipating the student would enter the 8th grade. (Exs. 27, K, T825) Arrangements for 8 weeks of Summer tutoring in parts of the 7th grade curriculum had been made by the district. Around July 4 the PPS director was informed that the parent had been unable to access those services, attempted to rectify that and advised the parent to inform her if she had subsequent problems. On July 14, the parent emailed the PPS director that the services were still not available and received no response. The PPS director testified that she was unaware that that remained a problem until she received the parent’s July 26 email requesting an IEE and a CSE evaluation. I credit that testimony and note the possibility of oversight, particularly in the circumstances of Summer 2020 occasioned by the pandemic. The district immediately agreed to the IEE and commenced the evaluation process. There was no reason for the district to commence an evaluation after the parents’ request.

The evidence therefore shows that the district became aware of the student’s planned return in late June. The parent requested an evaluation in late July. I find no basis for a conclusion, in view that the district’s failure to commence an evaluation prior to staff’s receipt of the parents’ referral violated its Child Find obligations to conduct an evaluation within “a reasonable time” upon reason to suspect a disability. I note that the student had done well in the 2016-2017 SY with the interventions provided, the frequency and effect of the [REDACTED] symptoms was changing, the district anticipated the student would be receiving substantial tutoring and the credible testimony that 8th grade classwork did not substantially depend upon mastery of 7th grade content (discussed below with regard to the IEPs). b) January 8, 2020 and May 19, 2020 IEPs The parents seek reimbursement for the student’s placement at [REDACTED] for the 2019-2020 and 2020-2021 SYs. The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the district are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the district bears the burden of proof and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] In New York State the district bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful, i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

* * * * *

• • I make the following preliminary findings before addressing specific parent claims:
• • Dr. [REDACTED] concluded that IEE scores were “remarkably similar” to the evaluations done by the district in 2017 and she concluded that the student at the time of the IEE (September-October) was in same shape neurologically as he had been in prior to the concussion. (T839) Further, she found notable that her testing had determined that his academic scores had stayed relatively stable since his last academic evaluation in 2017, indicating to her that he had kept pace with his prior levels of learning although he had not closed any achievement gaps. (Ex. 21) At the end of the 2017-2018 6th grade year benchmark assessments had shown the student at a 7th grade level for reading, not in need of any interventions in reading and math and therefore not recommended for a reading class in the 7th grade. (Exs. 12, 15) In view of the reported stability in relation to peers, it would be expectable that he would have significantly advanced with regard to benchmark assessment results at the time of the IEE if such had been conducted by the district. Indeed, MAP testing which was conducted by [REDACTED] when he started there after missing a year of school shows that his reading levels were average, that math levels were above average and that his language usage was above the mean. (T1129-1131, Ex. O) ^[36]
• • The pediatrician reported in December 2019, apparently for the upcoming review, that most of them [REDACTED] symptoms had resolved but the student still had [REDACTED] ^[37] (Ex. K) However it is not clear to what extent this was a result of the [REDACTED] i.e. to what extent it differed from his pre-[REDACTED] situation. The parent testified concerning the student’s [ REDACTED] symptoms at the time of May 2020 IEP that they had greatly improved but he “had sensory issues since he was a baby” and neither the parents nor the student could determine at that time if the symptoms were then at the [REDACTED] baseline. (T864-865)
• • With regard to the curricula that would be utilized in the district’s proposed program I find that undisputed and persuasive evidence shows that curriculum generally spirals (returns to topics previously taught) and that some 8th grade courses do not build on the 7th grade. (T162, 559, 560, 562) Further, in the ICT setting material can be taught 1:1 or in small groups by a special education teacher. (T162) BSP teachers/case managers are aware of areas of need with regard to necessary prior grade curriculum and able to work with a student consistently and provide support, including pre-reteaching to catch up to the extent necessary. ^[38] (T500-501) Of course, expected effectiveness and therefore appropriateness would be different depending on student abilities and needs. The circumstances in this case are discussed below.
• • i) January 8, 2020 IEP
• • The parents allege that the January 8, 2020 IEP was procedurally defective and substantively not appropriate.
• • A) Procedural Defects
• • The parents make the following claims with regard to their assertion that the January 8, 2020 is procedurally defective:
• • 1) The parents assert that an evaluation was not timely initiated in that it was not commenced by the district prior to the end of the 2018-2019 SY: I have addressed that claim above with regard to alleged violations of Child Find and incorporate that discussion herein.
• • 2) The parents assert that the January 8, 2020 CSE review, requested by the parents on July 26, 2019, was not conducted in accordance with regulatory time constraints: However, the evidence shows that the parents’ request for an IEE was promptly granted and the dates of that evaluation arranged by the parents and the evaluator. (Ex. I) The parent testified that she was told by the evaluator that the document was emailed to the district on November 7, 2019 but she has no personal knowledge as to whether that occurred. (T840-841) I note that the IEE references a feedback date subsequent to the alleged date of transmission to the district. (Ex. 21) The document in the record was not date stamped the PPS Director stated only that it arrived in late November-early December. (T96) The circumstances of the January 8 scheduling were not fully explained. However, I note the holidays and the ongoing difficulties and disruptions as a consequence of the pandemic. Further, the student was already placed in [REDACTED] and no prejudice has been asserted or demonstrated by the delay, I conclude that the delay was at most minimal and to the extent that any delay occurred it was merely procedural non-compliance and not a denial of a FAPE. Appeal No. 20-027
• • 3) The parents assert that the IEP was not provided to the parents until March 2020 ^[39]: Delay was not disputed by the district or explained. However, the parent was knowledgeable as to the CSE’s determination and participated in the implementation of the included transition plan. No prejudice has been asserted or demonstrated arising from the late production of the IEP which I find to be at most procedural non-compliance and not a denial of a FAPE. Appeal No. 20-027
• • 4) The parents that the CSE failed to include persons with appropriate knowledge of the student: The parents assert no failure to comply with regulatory requirements with regard to composition of the CSE. The knowledge and competence of the participants will be addressed with regard to the discussion of the parent claims that the IEP was not substantively appropriate.
• • 5) The parents assert failure to consider [REDACTED] recommendations: The [REDACTED] material was provided to the members of the CSE and [REDACTED] staff participated in the review. Credible testimony that they were considered was presented and the IEP specifically discusses the information provided by [REDACTED]. A failure/refusal to adopt recommendations of outside providers, to the extent that that occurred, does not support a conclusion that the recommendations were not considered. The appropriateness of the district’s program will be addressed with regard to the discussion of the parent claims that the IEP was not substantively appropriate.
• • 6) The parents assert failure to consider the IEE and the pediatrician’s recommendations: The IEE and the pediatrician’s reports were provided to the CSE and Dr. [REDACTED] participated in the review. Credible testimony that they were considered was presented and the IEP specifically discusses the information provided by Dr. [REDACTED] and the IEE. A failure/refusal to adopt recommendations of non-district evaluators, to the extent that that occurred, does not support a conclusion that the recommendations were not considered. The recommended program will be addressed with regard to the discussion of the parent claims that the IEP was not substantively appropriate.
• • 7) The parents assert that goals were generic, did not respond to the student’s deficits and contain no baseline or method of measurement and insufficient in that they did not include goals directed to study skills, reading fluency or writing mechanics and that the IEP failed to include the methodologies that would be used to implement them: Credible evidence shows, however, that the CSE discussed and developed goals at the review and both Ms. [REDACTED] and Ms. [REDACTED] testified concerning how the goals were tailored to specific deficits and recommendations contained in the IEE. (T447, 596-598) Organizing ideas was an area of weakness described in the IEE and a goal for the student to use a graphic organizer to help with planning and organization of his writing was developed. (T441, 521, 589, Ex. 23) That goal would also assist with inferencing as well as deficits in recall and understanding of auditory information. (T442) In view of IEE and [REDACTED] staff reports that the student’s writing lacked detail, the CSE recommended a goal targeting his ability to understand task demands and use teacher feedback to provide the necessary detail in his writing. (TT444, Exs. 22, 23) In view of concerns regarding self-advocacy skills, the CSE developed a goal to teach the student to ask for assistance if he was confused, having difficulty with materials or missing information due to lack of focus and ADHD. (T442-443, 590, Ex. 23) To address difficulties with stamina exacerbated by the concussion, a goal for the student to work consistently for 10 minutes, increasing his capacity by 1 minute per week was included. (T443, 523, 590, Ex. 23) To address parent and teacher reports that the student lost credit because he insisted on doing math in his head and refused to show the steps taken to solve the problem, goals to identify the proper operation in word problems and to show the steps taken to solve problems were specified. (T445, 489, Ex. 23) Further, the CSE recommended a goal for the student to attempt new academic tasks in non-preferred activities to address Dr. [REDACTED] concerns about inflexibility. (TT446, Ex. 21)
• • The parents participated in the development of the goals. (T446) There was no disagreement from the parents, [REDACTED] representatives or Dr. [REDACTED] at the review. (T100-101, 447, 973). There was no testimony at the hearing by any parent witness that the goals were improper or insufficient. I note with regard to the parents’ current claims that I give no weight to claims of inadequate assessment specification, and that it is well-established that methodology is not a required IEP specification. Further, when there are annual goals that appropriately target several of the student’s areas of deficit a failure to include an annual goal to address another area of deficit, without more, does not support a finding that the district failed to offer the student a FAPE. Appeal No. 20-015 and cases cited therein B) Parental Participation and Predetermination The parents assert denial of meaningful participation in the development of the IEP: It is undisputed that the parents were present and participated with regard to the development of the IEP. The evidence demonstrates that parental opinion regarding goals was solicited and parental concerns about the duration of the school day and the student’s stamina as well as his sensory needs were expressed, considered and addressed by the CSE. Although the parents felt rushed and believed they had little input in what was described as a “lengthy” meeting, that does not provide a basis for a conclusion that meaningful participation was not provided in the circumstances here. (T847-850) I find no basis for a conclusion that predetermination resulting in a denial of FAPE occurred with regard to failure to specify resource room. I note the similarity of the BSP in which the student was to participate and resource room. (T306 C) Substantive Adequacy The parents assert that the program provided (ICT (core subjects) and Counseling) with a BSP support class which would support the student’s program was not reasonably calculated to enable this student to make meaningful educational gains:

As discussed above, the student is very bright with substantial although variable cognitive and academic abilities and “neurologically complex.” Notwithstanding weaknesses including in fluency related areas, executive functioning, attention, processing and visual issues which resulted in, among other things, reduced stamina and which were accompanied sometimes by resistance and inflexibility in connection with school instruction, the student had progressed in a general education class with support services. The parents did not identify any social-emotional concerns on the social history form and Dr. [REDACTED] did not report any. (Exs. 20, 21) The 6th grade, the last year he attended district schools, showed substantial improvement in a variety of areas including in reading where it was concluded he was above grade level, albeit slightly, and did not require further reading support although BSP support and a 504 Plan were to be continued.

Although a [REDACTED] symptoms had resulted in his missing the entire 7th grade, at the beginning of the 2019-2020 SY (his 8th grade year), he was in the same situation neurologically as he had been previously and had kept pace with regard to academic skills with no increase in any gaps. The sole [REDACTED] symptoms reported to the CSE at that time were [REDACTED] which required various classroom accommodations. (Ex. K, T530) The CSE was aware that the student’s pre-existing stamina issues were exacerbated to a degree by those sensory issues and that anxiety with regard to return and entry into 8th grade might be experienced. (T100, 466, 530, 587-588)

The CSE considered comprehensive evaluative material which included the IEE, [REDACTED] reports and information provided by the student’s pediatrician. Dr. [REDACTED] and [REDACTED] staff participated in the meeting. The CSE was composed of highly experienced staff and included the student’s prior guidance counselor who had personal knowledge as to this student. (T238-241, 363-365, 575-576, Ex.23) Goals were discussed and developed at the review. As discussed above, they were tailored to specific deficits and the recommendations in the IEE. The parents participated in goal development and no participant stated any objection to the goals at the review. (T100-101,446-447, 873) I note there was no testimony at the hearing that the goals were in any way improper.

The parents assert that the program developed provides insufficient support. However, persuasive evidence shows that: Special education teachers, knowledgeable concerning the 7th grade curriculum, would provide appropriate differentiated instruction, 1:1 or in small groups when necessary. (T103, 525, 597, 603-604, 607, 626, 676) Instruction would be with peers at his emotional, intellectual and functional level. Instructional strategies utilized by the district facilitate differentiation based upon identified student needs. Numerous modifications and accommodations addressing this student’s various needs and derived from the 504 Plan and the IEE were provided and could be implemented in the ICT classes. (T458, 532-533) Substantial AT addressing the student’s specific deficits was provided. ^[40] (T455, 490, 510, 556, 605-606) Modifications addressing the student’s sensory issues as specified by the pediatrician were provided and modifications to classroom environment as needed were to be made. (T172, 344, 456, 490, 506) Counseling (1:1) was provided to help the student with self-advocacy with regard to his needs and to provide a contact person, in view of his long absence from the school, with whom he could discuss problems he might be having. (T103-104, 459-460, 542)

The CSE also concluded that a flexible transition plan was necessary to facilitate the return to school. (T 453-454, 467-468, 600, 703) All staff who would be responsible for the student subsequently met to discuss the student’s needs, including the [ REDACTED] effects and student issues with stamina. It was determined that the student should begin with high interest classes and increase in a slow and controlled manner in accordance with the student’s ability to participate. (T106, 461-462) The parents were aware that the plan was not time limited but rather was based on the student’s needs. (T974-975)

Further, as discussed at the review, the student was to also participate in daily small class BSP with a special education teacher to support executive functioning, study skills, breaking down of assignments, managing homework and tracking performance data to ensure that IEP goals were met. (T144, 567, 683-684, 712)

I note the absence of any professional testimony asserting that the program recommended by the district was not reasonably calculated to lead to meaningful educational gains in his circumstances. I also note that there has been no claim that Dr. [REDACTED] disagreed with the CSE’s recommendation at the review or subsequently. Further, I conclude that the CSE’s program was substantially consistent with the recommendations of the IEE. ^[41] I note, however, that a CSE is not required to adopt the recommendations of an independent evaluator but only to appropriately consider them. I find that the recommended program was substantively appropriate.

The parents assert that events during transition efforts demonstrate that the program was not appropriate for this student. I do not agree. The parent testified that the student was told about the district’s plan and the need to try it before a decision, which would include consideration of his experience, was made. (T856) I find persuasive the parent’s testimony that the student was not told that he had to stay only a week and that she had no knowledge of that. (T855) However, I find persuasive the testimony of Ms. [REDACTED] that early Tuesday morning the student informed the class, in her hearing, that Friday would be his last day and then he would be returning to [REDACTED]. ^[42] (T704) I conclude that the student had determined at least by early Tuesday that transition efforts would terminate on Friday.

Although the student informed the parent of difficulties he was having and of apparent lapses in the procedures that were to be in place, he did not report them to either Ms. [REDACTED] or Ms. [REDACTED] and none were observed. ^[43] Thereafter the parent, upon learning that Ms. [REDACTED] would not be in the building, informed the school that the student would not be attending Wednesday and Thursday, but he wanted to attend for a full day on Friday. On Friday the student did not report any difficulties to school staff, and none were observed. However, the student reported difficulties and lapses to the parent. No efforts were made by the parents to discuss the student’s reports with the school at that time and the student did not return.

In the foregoing circumstances I give limited weight to the student’s reports. I note, however, that certain difficulties in the initial stage of transition implementation when the student was just returning were expectable. I conclude that insufficient time was given to the attempt to support a conclusion that the student’s program was not appropriate.

D) Implementation Claims

1) The parents assert that experience during the period when the student attended the school demonstrate that the district cannot implement its program: Student experiences and transition efforts are discussed above. I find no basis for a conclusion that the district could not implement the program proposed.

2) The parents assert that the district would not have provided a program consistent with the IEP when the subsequent district wide COVID-19 closures occurred. The parents claim is speculative and will not be considered. R.E. With regard to the parents’ claim that changed plans were not provided in connection with the COVID -19 closure, I note that the student was not at that time attending a district school.

* * * * *

Based upon the foregoing I conclude that the district’s program for the 2019-2020 SY was reasonable calculated to result in meaningful educational gains in light of this student’s circumstances. I find that the district has met its burden to establish that it provided a FAPE for the 2019-2020 SY. ii) May 19, 2020 IEP The CSE convened four months after the January 2020 review to develop a program for the 2020-2021 SY (9th grade at [ REDACTED] High School.) The meeting was conducted remotely due to the COVIS-19 shut down. The recommended program includes the previously provided ICT classes and counseling and aided a daily resource room (5:1) as well as weekly (30 minutes each) consultations with the [REDACTED] teacher and a Team Meeting in the first quarter. (Ex. 25)

A) Procedural Defects The parents assert that the IEP is procedurally defective and substantively not appropriate. Specifically, the parents assert that:

1) The parents were not provided with the finalized IEP until August 31, 2020 and therefore were not provided with a timely and appropriate placement recommendation. The delay alleged was not disputed or explained by the district. However, the parent participated in the review and was knowledgeable as to the CSE’s determination. No prejudice has been asserted or demonstrated arising from the late production of the IEP which I find to be at most procedural non-compliance and not a denial of a FAPE. Appeal No. 20-027

2) The parents assert that the CSE failed to include persons with appropriate knowledge of the student: The parents assert does not assert failure to comply with regulatory requirements with regard to composition of the CSE. The knowledge and competence of the participants will be addressed with regard to the discussion of the parent claims that the IEP was not substantively appropriate.

3) The parents assert failure to consider the evaluative material provided to it and the updated reports of [REDACTED]. However, the [REDACTED] Head of School and a teacher participated in the review and the student’s program at [REDACTED] since the prior review was discussed. Credible testimony that the evaluative material referenced by the parent were considered was presented and the IEP specifically discusses the information provided by [REDACTED]. (T537) A refusal to adopt recommendations of non-district evaluators, to the extent that that occurred, does not support a conclusion that the recommendations were not considered. The recommended program will be addressed with regard to the discussion of the parent claims that the IEP was not substantively appropriate.

4) The parents assert that goals were generic, did not respond to the student’s deficits and contain no baseline or method of measurement and insufficient in that they did not include goals directed to study skills, reading fluency or writing mechanics and that the IEP failed to include the methodologies that would be used to implement them: However, the evidence shows that each of the previously developed goals was continued as Fusion had informed the CSE that it did not address those goals. The appropriateness and adequacy of those goals is discussed above with regard to the January 2020 IEP. In addition, the CSE added two additional goals based upon information provided by [REDACTED]: an additional writing goal directed to the utilization of teacher provided materials to facilitate correct capitalization, punctuation and grammar; a social/emotional/behavior goal concerning the use of positive strategies to resolve social conflict with peers and adults. There was no testimony that the goals were improper. Indeed, the IEP specifies that although the parents disagreed with the program they were in agreement with the goals and modifications. (Ex. 25) Further, when there are annual goals that appropriately target several of the student’s areas of deficit a failure to include an annual goal to address another area of deficit, without more, does not support a finding that the district failed to offer the student a FAPE. Appeal No. 20-015 and cases cited therein

B) Parental Participation and Predetermination

Although the parents assert denial of an opportunity to speak or raise their concerns at the review, in the hearing there was no testimony by the parent asserting that that occurred in May 2020 review. The parents participated in the hearing and the IEP indicates that their views were obtained. The CSE’s disagreement with parental proposals does not support a conclusion that they were denied meaningful participation.

The parents assert predetermination claiming that resource room was added because it was the only high school option. However, resource room addressed substantially the same issues as BSP and appears to be its functional equivalent. It is undisputed that BSP had been helpful for this student. Further, a support class devoted to academics was also available in the high school. I note that the student’s 6th grade reading teacher had not recommended continued reading instruction in view of the student’s success.

C) Substantive Adequacy The parents assert that the IEP was substantively not appropriate. The evidence shows the following:

By the time of the review although the student continued to have sensory issues the parent acknowledged that his [REDACTED] symptoms had “greatly improved.” (T864) Indeed, neither the parents, who are [REDACTED], nor the student were able to conclude that he had not returned to his [REDACTED] situation regarding that issue.

Updated academic reports from [REDACTED] stated that the student continued to have difficulties with putting his thoughts on paper, organizing his writing, improving stamina communicating with peers and teachers, showing his work in math and self-advocacy. (T537, 121, 538-539, 621) He continued to have [REDACTED]. (T864) The CSE, which had been informed that [REDACTED] was not working on prior IEP goals. concluded, based upon the information provided that the prior goals continued to be appropriate and carried all of them over but added two in response to [REDACTED] information (discussed above.) (T120, 477, 620, 696, Exs 23, 5)

The CSE was composed of highly experienced staff and included the student’s prior guidance counselor who had personal knowledge as to this student. (T238-241, 363-365, 575-576, Ex. 23) The CSE concluded that an ICT program would be appropriate. As discussed above with regard to the January 2020 IEP, ICT special education teachers provide differentiation, scaffolding, 1:1 and small group instruction, pre/re-teaching, among other thing and ensure that the student receives the modifications/accommodations provided. Those modifications/accommodations were carried over from the January IEP, the parents stated agreement with them at the May meeting and have not specified an objection to them. I note that they include vision breaks, preferential seating and supports to reduce vision strain and aid in processing information. (T480, 690, 698) To support this program the CSE provided daily resource room which would provide in a class of no more than 5 students additional special education teacher support by breaking down assignments, providing pre-re-teaching and assisting with organization of materials and executive functioning. (T476-477) Also recommended was a weekly consult with a teacher of the hearing impaired to support the IEE recommended FM system and with issues related to auditory processing deficits. (T478-479). A weekly vision consult was provided to address issues in that area including student needs arising from the [REDACTED]. (T479) Recommended counseling would, among other things, assist with the student’s re-entry into district schools and his need to develop self-advocacy skills (discussed above with regard to the January 2020 IEP.) A team meeting was also provided to enable the parents to meet with the high school team to ensure that the team was informed of their understanding of the student’s learning style.

To support the student’s return to full day programming and address any anxiety arising from the change from [REDACTED] the district’s high school, the CSE discussed and recommended, a transition plan. (T124, 480) ^[44]The actual plan could not be developed until the student’s high school schedule was unknown and would have been developed by high school staff. (T685, 688-689)

I note the absence of any testimony from an educator or psychologist asserting that the program recommended by the district was not reasonably calculated to lead to meaningful educational gains in his circumstances. I also note that there has been no claim that Dr. [REDACTED] disagreed with the CSE’s recommendation at the review or subsequently. Further, I conclude that the CSE’s program was substantially consistent with the recommendations of the IEE. ^[45] It is well-established that a CSE is not required to adopt the recommendations of an independent evaluator but only to appropriately consider them. I find that the recommended program was substantively appropriate for this student.

D) Implementation Claims The parents assert that the district did not provide sufficient information concerning implementation in the event of COVID-19 restrictions. The parents’ claim is “speculative” and will not be discussed. R.E. Further, the district’s plan was posted on its website when it was developed, and the parent was so informed. ^[46]

* * * *

Based upon the foregoing I conclude that the district’s program for the 2019-2020 SY was reasonably calculated to result in meaningful educational gains in light of this student’s circumstances. I find that the district has met its burden to establish that it provided a FAPE for the 2020-2021 SY.

[REDACTED]Placement and Equitable Considerations

Having concluded that the district provided a FAPE for each of the school years at issue, I do not address the appropriateness of the parents’ unilateral placement (Prong 2 or the equities in this matter (Prong 3).

ORDER

This matter is DISMISSED.

Dated: June 5, 2021

_________/s/ _________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

An appealing parties' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms available at http://www.sro.nysed.gov/part279home.html.

EXHIBITS

District

1 Amended Due Process Complaint dated October 21, 2020, 22 pgs.

2 Amended Answer dated October 22, 2020, 4 pgs.

3 2014-2015 504 Plan dated December 19, 2014, 3 pgs.

4 2015-2016 504 Plan dated June 11, 2015,3 pgs.

5 Grade 5 Report Card 2016-2017 School Year, 4 pgs.

6 Occupational Therapy Evaluation dated October 24, 2017, 4 pgs.

7 Speech and Language Evaluation dated October 30, 2017, 11 pgs.

8 Confidential Psychological Evaluation dated November 2, 2017, 2 pgs.

9 Confidential Educational Evaluation dated November 2, 2017, 13 pgs.

10 Confidential Classroom Observance dated November 2, 2017, 2 pgs.

11 Auditory Processing Evaluation dated January 12, 2018, 9 pgs.

12 F&P /Lexile Assess. Grade 6 dated Sept 2017-March 2018, 14 pgs.

13 Letter to District from Dr. [REDACTED] re vision evaluation dated 3/15/2018, 2 pgs.

14 CSE Ineligibility Document dated March 16, 2018, 5 pgs.

15 Aimsweb Benchmark Data dated Spring 2018, 2 pgs.

16 Grade 6 Report Card and Progress Reports dated 2017-2018 School Year, 5 pgs.

17 2018-2019 504 Plan dated April 27, 2018, 4 pgs.

18 2018-2019 504 Program Review dated October 17, 2018, 4 pgs.

19 Letter to District from Dr. [REDACTED] dated June 28, 2019, 1 pg.

20 Social History dated August 9, 2019, 4 pgs.

21 Neuropsychological Evaluation dated November 15, 2019, 25 pgs.

22 [REDACTED] Report Card and Summaries dated January 2, 2020, 6 pgs.

23 2019-2021 IEP dated January 7, 2020, 12 pgs.

24 Email Correspondence between Parent and District Regarding Consent Form dated October 15, 2020, 3 pgs.

25 2020-2021 IEP dated May 19, 2020, 14 pgs.

26 Emails between Parent and District re Transition 1/15/20-1/17/20, 2 pgs.

27 Emails between parent and various district staff concerning tutoring and medical documentation 3/25/19-6/16/19, 11 pgs.

Parent

A CPSE Declassification Document, March 14, 2011, 1 pg.

B Psychoeducational Evaluation (Dr. [REDACTED]), December 2013, 18 pgs.

C Psychoeducational Evaluation Update (Dr. [REDACTED]), November 26, 2014, 6 pg.

D Treatment Summaries from Dr. [REDACTED], December 2, 2013 March 3, 2014, 5 pgs.

E Emails re Students Concussions and Attendance, Various Dates (2018-2018 SY), 10 pgs.

F Grade 7 2018-2019 Report Card, June 27, 2019, 1 pg.

G Emails re [REDACTED]Various Dates (2018-2019 SY), 13 pgs.

H Parents Re-referral to the CSE and District Response. July26,30, 2019, 2 pgs.

I Parents Request for Independent Neuropsychological Assess., and district response, August 8, 13, 2019, 3 pgs.

J Parents Follow-up Email to Dist. (Req. to reconvene), November 25, 2019, 1 pg.

K Treatment Summaries from Dr. [REDACTED], December 11, 2018, August 13, 2019, November 27, 2019, December 11, 2019, 4 pgs.

L Parents Notice to the District, January 21, 2020, 2 pgs.

M Parents Notice to the District, August 20, 2020, 2 pgs.

N Parent FOIL Request and District Response, October 15, 2020, 5 pgs.

O [REDACTED] MAP Assessment, 2019-2020 SY, 4 pgs.

P [REDACTED] Contracts and Invoices, 2019-2020 SY, 16 pgs.

Q [REDACTED]Tuition Affidavit, 2019-2020 SY, 1 pg.

R [REDACTED] Attendance Record, 2019-2020 SY (September 3, 2019-June 30, 2020), 12 pgs.

S [REDACTED] Daily Summaries, 2019-2020 SY, 96 pgs.

T [REDACTED] Progress Reports, 2019-2020 SY, 10 pgs.

U [REDACTED] Annual Professional Development Plan, 2019-2020 SY, 6 pgs.

V [REDACTED] Annual Campus Programming Plan, 16 pgs.

W [REDACTED] Contract, 2020-2021, 13 pgs.

X [REDACTED] Tuition Affidavit, 2020-2021 SY, 1 pg.

Y [REDACTED] Attendance Record, 2020-2021 SY (Sept. 8, 2020-Dec. 17, 2020), 6 pgs.

Z [REDACTED] Class Schedule 2020-2021 SY, 1 pg.

AA [REDACTED] Progress Reports, 2020-2021 SY, 2 pgs.

BB [REDACTED] Annual Professional Development Plan, 2020-2021 SY, 7 pgs.

CC [REDACTED] Annual Professional Development Plan, 2019-2020 SY, 6 pgs.

DD [REDACTED] Annual Campus Programming Plan, 2020-2021, 16 pgs.

EE [REDACTED] Special Education Lead Notes, January 8, 2020, 2 pgs.

FF List of Teacher Credentials, October 2020, 2 pgs.

GG CSE Ineligibility Document, March 28, 2014, 3 pgs.

HH Section 504 Accommodation Plan, March 28, 2014, 3 pgs.

II Section 504 Accommodation Plan, April 28, 2016, 4 pgs.

JJ NYS Standardized Testing, Various Dates, 8 pgs.

KK Letter from [REDACTED], January 3, 2016, 1 pg.

LL RTI-Problem Solving Team: Minutes, March 31, 2017, 1 pg.

MM Section 504 Accommodation Plan, April 3, 2017, 4 pgs.

NN Email to Dist. (10 Day Notice 2019-2020 SY) August 20, 2019

OO Witness Affidavit [(REDACTED])

PP Witness Affidavit ([REDACTED])

QQ Witness Affidavit ([REDACTED])

Impartial Hearing Officer

I District Closing Memorandum

II Parent Closing Brief

III Due Process Complaint. dated 2/25/20, received by the district 3/12/20

Footnotes

[1] Number citations preceded by “Ex.” are district exhibits. Letter citations preceded by “Ex.” are parent exhibits. Italic citations preceded by IHO are impartial hearing officer exhibits. Citations preceded by “T” refer to the hearing transcript.

[2] Delay in decision issuance was occasioned by personal circumstances and although regretted was unavoidable.

[3] The record is unclear as to precisely how this was characterized by the district at the time. Evaluative material refers to the services provided differently. Nonspecial education services provided by the district during the period of the student’s enrollment have been referred to by district staff as Academic Intervention Services (Ex. K), Response to Intervention (“RTI”), Building Support Program (“BSP”) and Reading Development. (Exs. I, 2, T306) AIS was described as support offered to students based upon data points from previous years including RTI data and State assessments. (T148) RTI was described as a multilayered system of support in areas of apparent weakness - literacy, math, speech and motor- in small classes. T136) The BSP was described as a middle school program to support executive functioning, study skills and IEP goals among other things, conducted in a class of no more than 8 students with IEPS, 504 Plans or otherwise needing support. (T144, 148-149) The PPS director characterized RTI and building level supports as “the same.” (T137) There is limited information in the record concerning class content, methodology, assessments and specific student progress in the various programs.

[4] He noted that at that time (early 2nd grade) the student could decode a first-grade passage but had tremendous difficulty reading a second grade passage. (Ex. D)

[5] The literacy teacher described the student as a “deep thinker with a wide repertoire in interests.” (Ex. B)

[6] The parent acknowledged, however, that some additional supports were provided in the 3rd grade and the record shows that a reading specialist participated in the December 14, 2014 504 Committee meeting and reported on reading assessments. (Ex. 3)

[7] Persuasive evidence shows that certain accommodations had been agreed upon at the March 2014 meeting but not included in the 504 Plan, which the parent received very late. (T779-782, Ex. C) It appears that those accommodations were substantially included in the December 2014 Plan. (Exs. II, 3)

[8] By June 2014 (end of 2nd grade), the parents had provided, initially twice a week and subsequently once a week, private tutoring from a reading specialist trained in the Orton-Gillingham approach which continued into the 3rd grade. She noted lack of stamina and the student’s “great anxiety” when faced with the demands of remediation and curriculum. Ultimately, she concluded that the student needed systemic and structured small group instruction. (T774, 783-784, Ex KK) The parent conveyed information provided by the tutor to the student’s teachers.

[9] In a October 2017 Psychoeducational Evaluation conducted by the district it was reported that the Wilson Assessment of Decoding and Encoding (WADE) had been administered by the district in the 3rd grade year, that high degrees of accuracy were reported and that the reading specialist had concluded that the student was reading third grade level texts with a high degree of accuracy and good comprehension and that it appeared that his reading adapted to the complexity of the text that he was reading. (Ex. 8-4)

[10] The parent testified that the student’s 3rd grade teacher was particularly effective with the student. (T769, Ex. 4)

[11] The parent testified that the teacher, who had had been the student’s 3rd grade teacher, understood him well and early in the 5th grade had reported concerns about reading, writing, math and organization. (T786) Although the student said he was bored, it seemed to the parent that he was overwhelmed. (T787) His 5th grade report card, however, notes 19 absences and 49 “lateness” in the 2016-2017 SY. (Ex. 5)

[12] At some point in 5th grade a determination was made to provide on alternate days BSP and a Reading Development class for the 6th grade. (Ex. 8)

[13] Dr. [REDACTED] opined that the visual and auditory issues recently diagnosed could have negatively affected his 5th grade results. (T339-340

[14] The student had some two sessions of vision therapy. That therapy was discontinued by the parents at the recommendation of the student’s pediatrician who recommended evidence-based reading support (like Orton-Gillingham) instead. (T951) The student was provided with glasses but informed the parent that they were uncomfortable and did not help. (T951, 978) He did not wear the classes at home or in school. (Ex. 17, T951, 953)

[15] It convened one day after its receipt of the vision report. (T947-948)

[16] There were no disagreements at the meeting and Dr. [REDACTED] characterized it as the “nicest” meeting she had had in her some 20 years at the district. (T991,292)

[17] The parent testified that the student found helpful the breaking down of tasks, chunking, scaffolding, differentiation, teaching and reteaching and other supports provided in the BSP and the parents agreed (T954-955)

[18] F&P, a 1:1 assessment, measures oral reading fluency, accuracy and comprehension and allows prompting and scaffolding. Lexile uses algorithms to determine complexity of text and the program monitors student performance and monitors the difficulty of each passage to determine the Lexile level. (Ex. 12, T63, 66-70)

[19] Aimsweb is used to determine whether or not students are in need of intervention services at the time of testing. (T720) Student progress cannot be determined from the Aimsweb data in the record. (T720)

[20] The report card references an “attached AIS prog report” but that document in not the record. (Ex. 16, T148)

[21] It is noteworthy that Dr. [REDACTED] testified that Reading deficits were most likely to show up in ELA and also science and social studies. ((T303)

[22] Dr. [ REDACTED] had stated that” it is important to consider the interplay of his various diagnoses”, that he is a bright student who values his intellect but does not enjoy school”, “that it is important to be flexible …as he is an out of the box thinker”, “that tapping his creativity and balancing process with product” would be helpful in working with him” and that the goal was to have what he is producing (his output) match his intellectual capacity so getting him to demonstrate his thinking and understanding in different ways would be helpful. (Ex. 18)

[23] [REDACTED] updates were provided by the parent. (Ex. E)

[24] Although the parent could not recall when the [ REDACTED] therapy ended, the student had received some [REDACTED] tutoring the May-June period which indicated to the parent that therapy had concluded, or the student was tolerating it better. (T966)

[25] The record is inconsistent regarding the precise number of hours received from [ REDACTED] in the 2018-2019 SY but it is undisputed that it was de minimis.

[26] [REDACTED] provided services online and would therefore enable desirable flexibility over the summer. (T86)

[27] The student did not thereafter receive tutoring services. (Ex. NN) The parents asserted repeated unsuccessful attempts over 9 weeks to determine why the CSE [REDACTED] plan was not followed. (Ex. NN, T830-831)

[28] The parents assert that the district response at that time to inquiries as to how academic gaps would be addressed in view of the student’s having missed virtually all of the 7th grade included suggestions of self-advocacy and the seeking of after-school help. (T824-826)

[29] The date of receipt by the district is unclear. The PPS director testified that she believed the IEE was received in late November- early December 2019. (T96) Although the document references feedback on November 15, 2019, the parent testified that Dr. [REDACTED] emailed her that the final report was sent to the district on November 7, 2019, (T840-841) On November 25, 2019, the parents requested the scheduling of the review, noting their understanding that the district had received the IEE. (Ex. J, T41)

[30] Record references not specified below are cited above. Claims in the due process complaint not addressed in the parents’ closing brief are deemed to have been abandoned.

[31] It is noteworthy that Dr. [REDACTED], in 2013, had recommended that the student’s tracking skills should be monitored and if problems were noted, a developmental optometry evaluation should be done (Ex. B) and Dr. [REDACTED] in the 2019 IEE recommended that the parents obtain recommendations for targeted interventions for vision and auditory processing. (Ex. 21)

[32] Dr. [REDACTED] had almost 20 years’ experience in the district as a psychologist, has a doctorate in school psychology, and a diplomate in school neuropsychology. (T239-241)

[33] The [ REDACTED] disorder is a possible explanation for the student’s poor performance on the longer NYS ELA assessment where he could more likely fatigue in contrast to his reading at grade level on benchmark assessments. (T335, 339-340, 942, Exs, JJ, 12, 15)

[34] The parents subsequently opted against vision therapy upon the advice of the student’s pediatrician after only two sessions were provided and the student did not wear the glasses provided. (T951, Ex. 17) There is no indication when the determination with regard to vision therapy was made known to the district.

[35] The IDEA specifically excludes from the definition of a learning disability “any learning problems that are primarily the result of visual, hearing, or motor disabilities…” 8 NYCRR 200.1(zz)

[36] Further, the evidence shows that past district nonspecial education strategies had been effective in enabling the student, despite the areas of weakness described in the 2017 and 2019 evaluations, to make progress academically. He also had progressed in social-emotional areas while in district schools. I note that Dr. [REDACTED], consistent with various district reports, concluded that the student had been more comfortable and confident in school starting in around the 4-5th grade. (Ex. 21 at 8)

[37] When the referred to resolution of most of the [REDACTED] symptoms occurred is not in the record.

[38] The role of the BSP teacher with regard to curriculum issues was discussed at the review. (T501)

[39] The basis for that assertion is unclear. The parent testified that she believed it was received 10-14 days after the review. (T859-860)

[40] Although the parents question the efficacy of an FM system (Ex. II) I note that Dr. [REDACTED] recommended “[u]se of an FM system as recommended by the audiology recommendations.” (Ex. 21 at 16)

[41] I note that specially designed instruction means “adapting, as appropriate to the needs of an eligible student…, the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability; and to assure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.” 8NYCRR 200.1(vv)

[42] Indeed, the student at that time was continuing with his full [REDACTED] program after transition classes had concluded on both Monday and Tuesday.

[43] I find persuasive the parent’s testimony that she attempted to discuss the student’s report with Ms. [REDACTED] but was unable to do so due to Ms. [REDACTED]’s schedule.

[44] The student was working on 8th grade curriculum materials at the time of the review and had significantly reduced academic gaps arising from his absence during the 7th grade.

[45] I note that specially designed instruction means “adapting, as appropriate to the needs of an eligible student…, the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability; and to assure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.” 8NYCRR 200.1(vv)

[46] With regard to the parent’s assertion that she was denied an opportunity to visit the high school after the IEP was developed on confidentiality grounds, I note that all schools were closed in that period, and such instruction as was provided was while students were at home.