Impartial Hearing Decision

State of New York: Count of Dutchess

Decision

An impartial hearing was brought by [redacted] & [redacted]. [hereafter] “Mother," “Father," and/or Parents on behalf of their daughter, [redacted [hereafter, “Child/Student”] against the [redacted] Central School District [District].

Hearings were held on May 28, 2021, June 1, 2021, June 2, 2021, June 8, 2021, June 9, 2021, July 12, July 22, July 23 & August 12, 2021.

2023 pages of testimony were received into the record. The Parties submitted 197 documents and 14 documents respectively. Briefs were submitted on September 18, 2021, which became the record close date.

Statement of the Issues The Parents of a Student with a disability, residing in the [redacted] School District is challenging the District’s Committee on Special Education [CSE] recommendations for the 2018-2019, 2019-2020 & 2020-2021 school years.

The sum and substance of the issues in the Due Process Complaint [Complaint] dated January 25, 2021, are as follows:

The Complaint alleges that the [CSE] failed to write annual goals that were specific and meaningful: failed to evaluate [the Student] in all suspected areas of [her] disability; denied the Parents’ request for an independent neuropsychological evaluation; failed to implement the [Student’s] IEPs for the years stated in the Complaint; denied meaningful participation by the Parents in developing the Individual Education Program [IEPs] for 2018-2019. 2019-2020, and 2020-2021 school years; failed to properly convene the CSE for the January 31, 2021 meeting; failed to train teachers in working with children with Autism; due to the District’s material misrepresentations to the Parents the two years statute of limitations does not apply; failed to provide FAPE to the Student in the 2015-2016, 2016-2017 and 2017-2018 school years [K-2nd grade] The relief the parents seek are compensatory educational services which include 200 hours of 1-1 speech and language therapy; a bank of $15,000 to be put towards reading instruction with a certified reading teacher of the Parents’ choosing using a multi-sensory approach in a research based methodology; summer [ESY] programing at the [reacted] for the summers of 2021, 2022 and 2023 or another literacy program; compensatory ABA services to be provided by an Applied Behavioral Mental Health Counseling, PC or another certified ABA therapist of the Parent’s choosing; payment for the [redacted] Center neuropsychological evaluation for the amount of $6,800.00; an assistive technology evaluation performed by a certified AT of the Parents choosing; a reading evaluation performed by a certified reading teacher of the Parents choosing and an initial assessment of the [Student’s] autism by a Board Certified Behavioral Analyst for the amount of $1,000.00.

The sum and substance of the District’s response to the Complaint is as follows: The recommended program as set forth in the 2/20/2018 IEP, the placement in an Integrated Co-teaching program with indirect Consultant Teacher, speech/language therapy….was appropriate and in the least restrictive environment; the recommended program as set forth in the 2/4/2019 IEP, the placement in an Integrated Co-teaching Service, Indirect consultant Teacher, speech/language therapy was appropriate…; the recommended program as set forth in the 1/31/2020 IEP in an Integrated Co-teaching program, speech /language therapy….was appropriate; the recommended program as set forth in the 9/2/20 IEP in an special class [12:1:1], speech/language therapy was in the least restrictive environment; the Parents were provided with the opportunity to have meaningful input in the development of the IEPs; the IEP goals were specific and meaningful; all Parental claims are barred by the two year statute of limitations; all Parental claims arising from the summers of 2015, 2016 and 2017, all are beyond the statute of limitations as well the Doctrine of Latches since the District believes that this matter was presented as being unreasonable delayed; the classification of Learning Disabled is appropriate; the District has considered the input of the Student’s teachers, Parents and other individuals through presentations, evaluations, assessment records and reports as identified on each and every IEP in this matter; the District rejects the request of a bank of $15,000 be created for reading instruction; the cost for the Parent’s neuropsychological evaluation is not a valid request since the District did not obtain a neuropsychological of its own and is beyond the cost cap; the District rejects the request for compensatory service of evaluation, as well the award for compensatory ABA services, the District asserts the Section 504 and ADA claims are beyond the jurisdiction of this hearing officer.

Background

The Child/Student’s early history was remarkable in that the Parents observed serious delays in her hand and motor development. To address these delays, the Parents enrolled her in an early intervention program [Astor Early Head Start], provided to children ages 18 months to 3 years old during the 2012-2013 year. The Parents’ observations were confirmed in the evaluation conducted in the fall of 2012, which indicated her expressive and receptive language fell between the 7 % to 10 %, with a full-scale cognitive level within the average range of 89. It was noted that the child required direct explicit directions, possessed a limited attention span, which interfered with her ability to acquire skills and had limited speech sound inventory. Her delays in receptive language, vocabulary, articulation and pragmatic abilities ranged between 15 months to 20 months. She received SEIT services in a 12:1:1 program with speech and language services. [D-141, D-158]

On 11/29/12, the Child, at age three, transitioned to the Committee on Preschool Education [CPSE], where she continued to receive special education itinerate teacher services [SEIT] and speech therapy to improve her sound production. Her pre academic achievement showed a 12-month delay. Her communication delays continued to be significant as had her receptive and expressive language skills. Her socialization skills were limited due to her limited verbalization. [D-141, D-161]

On 11/4/13, the CPSE met and reviewed the physical therapy evaluation and determined that the Child demonstrated delays in her physical development in stationary, locomotion and object manipulation skills and abilities. The result was the addition to her special class [12:1:1], speech therapy, individual physical therapy was added to her program. She continued to demonstrate a 12-month delay with her pre-academic achievement. Expressive, receptive and articulation delays continued to impact her educational skill development. She required “a small highly structured classroom with consistent routines utilizing a language-based curriculum to learn and retain new language skills”. [D-141, D-163]

On 4/20/14, the CPSE met to conduct its annual review for the 2014-2015 year. At the time, the Child was 4 years 3 months. Placement would continue in a special education class [12:1:1], speech and language therapy physical therapy and an extended school year program [ESY] which was added for the summer of 2014. The Child’s dependency continued on “adult support to participate productively in learning activities”. She had difficulty using her knowledge for problem solving. Her learning was impacted by her limited attentional span and high level of distractibility. She demonstrated a 15-to-17-month delay in her pre academic achievement. She demonstrated significant delays in auditory comprehension and language expression. She communicated with non-language vocalizations to communicate and exhibited a 15-month delay in expressive language skill and a 25 month delay in articulations skills. She required frequent opportunities for 1-1 small group teaching. [D-168]

On 5/26/15, the CPSE met to transition the Child to a CSE meeting for the 2015-2016 year. She was now 5 years 5 months and kindergarten eligible. Notable comments indicated that improvement had been noted in her daily living skills, gross motor skills and benefited from a structured 1-1 teaching situation. Significant articulation delays; struggled with answering questions independently; difficulties with concepts; word sentence structures: attention to tasks as well as her inability to generalize word and phrases. The CSE program recommendations included a special education class [12:1:1], speech and language [ind. & group], physical therapy and a summer ESY program. [D-141, D-166]

On 12/8/15, an amendment to the IEP was made to add to the Child’s existing speech and language services, 2 [15 min.] sessions in a 6 day cycle. [D-88]

On 6/22/15 a program review was conducted by a Subcommittee on Special Education. It was noted that the Child had increased her independent skills and had developed rote skills such as labeling colors and shapes, reciting her ABCs and counting 1-13. She benefited from instruction presented both visually and auditorily. She continued to demonstrate significant articulation delays, which impacted her speech intelligibility and clarity. She struggled with answering questions independently. She had difficulty understanding quantitative concepts. She continued to demonstrate motor planning weaknesses. She “learns best in a structured 1-1 teaching sessions with tasks broken down and presented individually”. Though expected for a Child of her age, she did not communicate using appropriate word and sentence structures on a consistent basis. She required the staff’s support for clarification and support but did not utilize these language skills. When visual supports were removed, her ability to answer questions decreased. She continued to produce many sound substitutions and omissions, which adversely impact her speech clarity. It was expected that a child of her age to be understood 100% of the time. She had not generalized consistently to spontaneous speech her single words and phrases. She required a structured classroom with constant routines and a language-based curriculum. The CSE recommended continued placement in a special class [12:1:1], speech and language services [ind. & grp], physical therapy and summer ESY for the 2015-2016 school year. [D-167]

On 12/9/15, a speech and language reevaluation was conducted using the CELF-5. The Core Language standard score was 73; receptive language score was 78 and the expressive language score was 70. It was noted that in her articulation, she used multiple omissions and at a low speaking volume. She was diagnosed with a moderate to severe expressive language disorder in word and sentence structure. She was inconsistent in following 2 step directions; unable to identify words without a visual cue; unable to demonstrate noun verb agreement; nor use irregular plural forms; used immature sentence structure; unable to formulate complete sentences; utterances were short length, and her receptive vocabulary was within the low range. [D-147]

A number of reevaluations were conducted in early 2016 [kindergarten]. On 1/15/16 a psychoeducational evaluation was conducted. Most notably, the Child’s visual processing was within the high average range [79%] and her attention and concentration fell within the average range [58%]; her verbal reasoning and concept formation were in the 10th %; nonverbal reasoning was in the 13 %; fluid reasoning, thinking logically was in the

21 %. [D-139] The Woodcock Johnson-4th edition [WJ-IV] was administered to the Child on 2/18/16. Her broad reading score was within the 10 %; passage comprehension was within the 24 %; sentence reading fluency was within the 7 %; broad math was within the 3 %; applied problems within the 14 %; calculation and fluency within the 5 %; broad written language within the 3 %; writing within the 3 %; fluency within the 7 % and spelling within the 25 %. Overall, her achievement scores were seriously below expectation for her age. [D-47]

A physical therapy examination was conducted on 11/4/15 and again on 2/29/16. The evaluator found that the Child was within the average range in locomotion, object control and strength and coordination. Her one weakness was in her endurance. Physical therapy was discontinued. [D-134]

On 3/16/16, the CSE conducted its reevaluation review. At the time of the meeting the Child was 6 years and 3 months old. The psychological evaluation, the speech and language evaluation and the physical therapy examination were reviewed. It was noted that the Child was considered a prereader and close to passing “level A” [readiness basal equivalent]. She was still working on “increasing her academic confidence and independence”. Her needs continued to be in the areas of articulation; sentence structure, grade level vocabulary, basic concept knowledge, answer “wh” questions, communicate effectively in social situations and improve her endurance. It was noted that her significant delays required a small student to teacher ratio in her program with minimal distractions in order to progress academically. She continued to demonstrate significant delays in her speech and language, communication skills and in her basic academic skills, which impacted her participation and progress in general education. The CSE recommended that she continue in a special education class [12:1:1] with speech and language therapy [ind. & grp] as well as participate in a summer ESY program for the 2016-2017 school year. [D-160] The CSE did not have in its possession the Child’s end of year kindergarten report card, which indicated that the Child was functioning on an independent reading Level A [readiness] whereby the benchmark Level was C [Pre-Primer 1], therefore, she was below grade level. Her classroom teacher indicated that she needed improvement in decoding, comprehension, written expression, math calculations, concepts and problem solving. She was promoted to 1st grade. [D-15]

On 5/22/17, the Subcommittee on Special Education met to conduct its annual review and develop and Individual Educational Program [IEP] for the 2017-2018 school year [2nd grade]. At the time of the meeting the Child was 7 years 5 months old. It was noted that she was reading at “Level D” [Pre-Primer 2] in the 3rd quarter. In mathematics, she was working on two-digit addition. In speech therapy, she was inconsistent in using strategies she had been previously taught when applying them in conversational speech. She continued to demonstrate errors in connected speech. Her use of correct pronouns continued to the delayed. Her speech intelligibility needed to improve. Her areas of need included: math concepts, ability to add and subtract whole number, written expression, expand on details, write complete sentences, improve decoding skills and reading comprehension. She required additional support of special education services to be successful in the regular education classroom. For the 2017-2018 school year [2nd grade], the CSE recommended the integrated co-teaching program, consultant teacher [indirect], speech and language therapy [ind & grp] as well as a summer speech and language therapy service. The change of program and placement was without a prior written notice of such a change. [Honig v. Doe, 484 U.S. 305 [1988] The results of the Child’s IEP end of year goals report were as follows: she was able to identify the letters of the alphabet; was progressing with phonemic awareness; recognized 1st grade words; she could capitalize the first word in a sentence; progressed in her ability to create a narrative with the use of the conventions of standard grammar; she was able to identify numerals 1-100; able to add within 10 and write numerals 1-120; made progress in producing phonemes in the initial and final position of words; was progressing using correct semantic skills; was progressing in formulating grammatically correct sentences; she was progressing gradually in expanding her utterances and responses to questions. [D-116] The Child’s 1st grade end of year report card indicated that she was at independent reading Level D [PrePrimer-2], whereas the benchmark was Level I [grade 1]. She needed to improve skills in her reading comprehension, decoding, written expression, math concepts, computation and problem solving; she was unsatisfactory in her ability to express and communicate complete thoughts and ideas in a clear and organized manner. [D-16]

During the summer of 2017, the Child was enrolled in the “[redacted] Program”, a four-week mainstream program for 25 minutes daily in a small group. She was successful using the beginning word sounds and write a 3-letter word correctly, she needed to focus on reading comprehension, sight words, digraphs and ending sounds. [D-11]

On 7/13/15, the CSE sent a notice to the family informing them that the triennial evaluations were due and requested written permission to proceed. [D-104]

My conclusion was that the special education program the CSE recommended for the 2017-2018 was a change of program for the Child, which placed her in the least restrictive environment with greater access to the general education population, but with fewer support services [ie. T/C indirect]. The CSE’s recommendation was reportedly based upon the District’s evaluations conducted earlier in the year. The 2017-2018 school year was not an issue in this hearing, but the CSE recommendation provided me with some understanding of the direction the CSE envisioned for this Child going forward. [D-162] The Child also received a mainstream Academic Intervention Services [AIS] for math during her second-grade year. The focus of the intervention was addition and subtraction problem solving; understanding place value and adding and subtracting to grade level standards were still developing, she had shown progress in understanding the meaning and problem solving for addition and subtraction. [D-31]

Finding and Facts

2018-2019 School Year-3rd grade

Two CSE meetings were held to develop IEPs for the 2018-2019 school year. One was held on 2/20/18 and the other on 2/4/19. This school year is the school year that the District argues is beyond the Statute of Limitations.

The CSE first met to conduct its annual review on 2/20/18 [midyear], while the Child was attending 2nd grade. She was reading at independent Level E, [PrePrimer-3], which was below grade level and below the benchmark of Level L [grade-2]. Comprehension skills had improved. Decoding, sight words, word blends, digraphs, spelling, math basic facts addition and subtraction remained areas of difficulty. She was able to add double digit numbers; understood place value, but difficulties continued in written expression. Her speech intelligibility had improved to 90%. She now used final consonant sounds correctly. Difficulties continued in expanding her sentences and sentence structure, as well as expanding on her vocabulary, answering “wh” questions and following 2-3 step directions. There was some evidence that she demonstrated a short attention span during academic activities. The special education goals were: using the correct structure; grammar and expanding on her ideas; decoding, fluency, spelling, sentence structure, mental computation, synonyms and antonyms, formulating grammatically correct sentences, follow multi step directions and discuss attributes and functions of objects. [D-159, D-90] The Child’s progress on her IEP goals indicated that she was progressing gradually in using high frequency words; using the correct sentence structure and adding and subtracting to 100 in solving problems.

She was progressing satisfactorily answering 1st grade level questions; using the correct punctuation; counting money; place value to ones, tens and hundreds; deletion of the final consonants; formulating grammatically correct sentences and the use of pronouns. [D-117] The Child’s end of year report card indicated that she was proficient in understanding fictional and non-fictional texts; wrote to communicate ideas and information effectively; listened to class discussion and expressed complete thoughts and ideas in a clear and organized manner. She needed to improve in her use of the text to support.… her thinking; strengthening her writing skills; use of grade level grammar, spelling, punctuation and capitalization. She was unsatisfactory in understanding math concepts, problem solving and mathematical operations as well as with decoding words or reading with accuracy and fluency. [D-17] The Child attended the [redacted] program during the summer of 2018.

The program identified areas in math addition and subtraction of facts, as well as multiplication facts as deficient. [D-12, D-13]

On 10/18/18, the results of the Child’s Foundational Skills were recorded by her AIS teacher. Sight words, using a three-second time limit, were noted for Rhyming 9 of 10, Level A sight words 12 of 12, Level B sight words 17 of 17, Level C sight words 22 of 22, Level D sight words 17 of 17, Level E sight words [PrePrimer-3], 15 of 22; Level F sight words [Primer], 7 out of 12; Level G sight words [Primer], 11 out of 15, and Level H & I [Grade 1], 15 out of 20. [D-35]

On 2/4/19 [midyear] the CSE met to conduct its reevaluation/annual review, the Child was in 3rd grade at the time. It was noted that she was reading at a Level D [PrePrimer-2]. She struggled with phonics and comprehension skills beyond the text. Her writing skills lacked details to support her ideas or the topic. Her academic skills were within the below average range and in the low ranges concerning reading, writing and mathematics. The results of the testing indicated that her classroom performance was also reflective of her participation across the curriculum. Her 1/7/19 cognitive scores ranged within the low average to average ranges. Her relative strengths were in her verbal skills, visual spatial skills and processing speed. Weaknesses were with her working memory. Her Core Language Index score [12/14/18] fell within the low to moderate range of severity. Her receptive and expressive language disorder was in the moderate range. She demonstrated a strength with word classes. Her expressive vocabulary was in the moderately low range, while her receptive vocabulary fell in the low average range. She benefited from highly structured tasks with small group instruction, reteaching, multiple opportunities to practice with ongoing review. For her age, she presented decreased phonological awareness skills, which negatively impacted her literacy skills. The speech and language therapy focus would be to strengthen her vocabulary, word retrieval, grammar, syntax and varied sentence types and complexity. The Parents also express similar concerns at the CSE meeting. [D-165] The IEP goals would focus on the following areas: syllabication of words; sight word recognition, write complete sentences; solve two step word problems using the four basic operations; formulating grammatically correct sentences, increase her vocabulary and increase her phonological awareness. The Child’s 2019-2020 program and placement was to continue in the Integrated Co-teaching program with consultant teacher [indirect] and speech therapy in a small group [2 x 30 min.] in a 6th day cycle. [D-165] The prior written notice dated 2/4/19 indicated that based on evaluative material and school reports, the CSE recommended that the Child receive special education and services for the 2019-2020 school year as indicated on the IEP. No other options were considered. [D-89] The New York State Testing Program for mathematics was conducted during in the spring of 2019. On that assessment, the Child did not meet the State standard placing her with a score of 590, Level 2. Student’s performing at this level were partially proficient in the standards for their grade. [D-40] Also assessed for English ELA indicated that the Child score was 572 Level 1, functioning “well below the proficient in standards for their grade” and did not meet the State standard. [D-34]

Also conducted in the spring of 2019 was the MAP and generated a student progress report showing her mathematics operations and algebraic thinking, measurement and data and number and operations to be in the low range; reading results showed understanding key ideas, details and connections, vocabulary and understanding language, craft and structure were also in the low range. [D-36] The Child’s end of year progress for her IEP goals showed that she achiThe CSE met to conduct its annual review on 2/20/18, while the Child was attending 2nd grade. She was reading at independent level E, which was below grade level and below the benchmark of level L. Comprehension skills have improved. Decoding, sight words, word blends, digraphs, spelling, math basic facts addition and subtraction are all need areas. She is able to add double numbers; understands place value. Written expression need areas are: using the correct structure and grammar and expanding on her ideas. Her speech intelligibility has improved to 90%. she now uses final consonant sound correctly. Areas of need are to expand her sentences and sentence structure, expand her vocabulary, answer “wh” questions and follow 2-3 str directions. There is some evidence that she demonstrated a short attention span during academic activities. Her goals followed her need areas in coding, fluency, spelling, sentence structure, mental computation, synonyms and antonyms, formulate grammatically correct sentences, follow multi step directions and discuss attributes and functions of objects. [D-159, D-90] The Child’s progress on her IEP goals indicate that she was progressing gradually in using high frequency words, using the correct sentence structure and adding and subtracting to 100 in solving problems.

She was progressing satisfactorily answering 1st grade level questions, using the correct punctuation, count money, place value to ones, tens and hundreds. deletion of the final consonants, formulate grammatically correct sentences and the use of pronouns. [D-117] The Child’s end of year report card indicated that she was proficient in understanding fictional and non-fictional texts, wrote to communicate ideas and information effectively, listened to class discussion and expressed complete thoughts and ideas in a clear and organized manner. She needed to improve the use of the text to support etc. her thinking; strengthening her writing skills; use grade level grammar, spelling, punctuation and capitalization. She was unsatisfactory in understanding math concepts, problem solving and mathematical operations as well as with decoding words and reading with accuracy and fluency. [D-17] The Child attended the [redacted] program during the summer of 2018.

The program identified need ares in math addition and subtraction of facts, as well as multiplication facts. [D-12, D-13] The CSE met to conduct its annual review on 2/20/18, while the Child was attending 2nd grade. She was reading at independent level E, which was below grade level and below the benchmark of level L. Comprehension skills have improved. Decoding, sight words, word blends, digraphs, spelling, math basic facts addition and subtraction are all need areas. She is able to add double numbers; understands place value. Written expression need areas are: using the correct structure and grammar and expanding on her ideas. Her speech intelligibility has improved to 90%. she now uses final consonant sound correctly. Areas of need are to expand her sentences and sentence structure, expand her vocabulary, answer “wh” questions and follow 2-3 str directions. There is some evidence that she demonstrated a short attention span during academic activities. Her goals followed her need areas in coding, fluency, spelling, sentence structure, mental computation, synonyms and antonyms, formulate grammatically correct sentences, follow multi step directions and discuss attributes and functions of objects. [D-159, D-90] The Child’s progress on her IEP goals indicate that she was progressing gradually in using high frequency words, using the correct sentence structure and adding and subtracting to 100 in solving problems.

She was progressing satisfactorily answering 1st grade level questions, using the correct punctuation, count money, place value to ones, tens and hundreds. deletion of the final consonants, formulate grammatically correct sentences and the use of pronouns. [D-117] The Child’s end of year report card indicated that she was proficient in understanding fictional and non-fictional texts, wrote to communicate ideas and information effectively, listened to class discussion and expressed complete thoughts and ideas in a clear and organized manner. She needed to improve the use of the text to support etc. her thinking; strengthening her writing skills; use grade level grammar, spelling, punctuation and capitalization. She was unsatisfactory in understanding math concepts, problem solving and mathematical operations as well as with decoding words and reading with accuracy and fluency. [D-17] The Child attended the [redacted] program during the summer of 2018.

The program identified need ares in math addition and subtraction of facts, as well as multiplication facts. [D-12, D-13] The Child received AIS services during the 2018-2019 school year. She was in a small group for 30 minutes per day. During the year she was taught using the S.P.I.R.E. program which focused on phonics and phonological awareness. Her program focused on reading three- and four-letter words. [D-5] The end of year report card, the Child was at Level D [PrePrimer-2] throughout the year with a benchmark of [grade-2] to Level O [grade-3] for the same period. She was unsatisfactory in reading literature [comprehension], informational text [comprehension] and foundational skills [decoding]; listening skills and communication of mathematical thinking. She continued to need improvement in her writing skills, planning and revising her writings; proper use of grammar, capitalization, punctuation and spelling; express complete thoughts and ideas; performing mathematical operations; understanding math concepts and used in problem solving activities. Her teacher noted that her use of proper mechanics and grammar in her writing were challenging; she continued to require continuous practice with decoding; multiplication facts 1-10; required teacher support to organize and develop her ideas and use the proper grammar in her writing. [D-18]

2019-2020 School Year-4th grade

As previously stated, the IEP developed by the CSE for the 2019-2021 school took place on 2/4/19 [midyear] with the CSE meeting again on 1/31/20 [annual review]. The Petitioners, in their Due Process Complaint, are challenging the appropriateness of the 2019-2020 school year IEP [fourth grade]. [D-165]

Prior to the 2/4/19 and the 1/31/20 CSE meetings a number of activities took place. During the summer of 2019, the Child attended the mainstream [redacted] program, which focused on reading [comprehension], writing [essay writing] and math skills [basic facts & problem solving]. Home activities recommended were to practice her basic [math] facts. [D-13 & D-14] The Parent was notified in the Fall that their daughter would be receiving AIS for English/language arts and mathematics for the 2019-2020 school year. She was developing skills in solving addition, subtraction, multiplication and division problems; understanding place value; solving problems with measurement, minimal progress was noted in understanding the meaning of multiplication and division and place value. It was also noted that the Child made mistakes when adding and subtracting large numbers that involve regrouping. [D-33]

On November 7, 2019, the Parents were informed that their Child’s AIS English language arts program, would focus on thinking within the text [decoding & fluency], thinking beyond the text [comprehension] and thinking about the text [analyzing and critiquing]. [D-6] The MAP student progress report for the Fall 2019, indicated that the Child’s operational and algebraic thinking, measurement and data and geometry were in the low range, while her number and operations were low average. Her understanding of key ideas; details and connections; vocabulary acquisition; the use and the understanding of language, craft and structure were all within the low range. [D-37] The Subcommittee on Special Education conducted its annual review on 1/31/20 [midyear], in attendance for the District were the special education and general education teachers as well as the school principal. Absent from the meeting were the speech and language therapist and the school psychologist. Both staff members possessed firsthand direct knowledge of the Child’s unique abilities and their absence greatly reduced the information that CSE had before it. It was also noted at the meeting, that the Child was highly motivated; had difficulty following directions for writing activities; difficulty expanding on her ideas; difficulty using correct grammar or mechanics in her writing. All remained challenging. She had a severe reading disability and was reading at an independent Level F [Primer level] well below her peer group. Materials and texts needed to be read to her in order for her to complete tasks. Improvement was needed with her mathematical concepts, basic mathematic skills and solving word problems. Speech and language report indicated that she required a highly structured small group environment. She required the use of visuals, repetition and reteaching opportunities for practice. Improvement was needed with her vocabulary, grammar and sentence length and complexity.

Annual goals were listed in the area of decoding, reading fluency, reading comprehension, using the writing process, mathematic basic skills, solving multi-step word problems, multiplication facts, stating conclusions and inferences, use suffixes and prefixes in her speech and use grammatically correct compound sentences.

The CSE recommended that the Child continue in her current ICT program for the remainder of the school year and into the 2020-2021 school year. [D-164, D-92] The Child’s third quarter report card indicated that she was at an independent reading Level F [Primer level] with the benchmark at Level Q [grade 4 level]. Level F was significantly below grade level. She needed improvement in understanding fictional and nonfictional texts; in written expression; in the use of grade level vocabulary; in the use of grade level grammar, capitalization, punctuation and spelling. In mathematics, improvement was needed with her problem-solving skills. She was unsatisfactory in the use of the text; in her support of her thinking; in the use of grade level phonics; in reading with accuracy and fluency; in writing effectively communicate her ideas and information; in expressing complete thoughts and ideas when speaking; in performing mathematical operations accurately and in understanding math concepts. “Small group and reteaching of concepts seem to have some positive impact”. [D-19, D-164] The progress towards the Child’s IEP goals were as follows: progressing gradually in formulating grammatically correct sentences in her use of language; in generating definition for multiple meaning words. Other notations indicated that she was able to identify syllables in a word; able to write 5 consecutive sentences on topic; she was inconsistent recognizing grade level content words; inconsistent solving 5 twostep word problems using mathematic basic skills. Progressing gradually means the student is making less than anticipated progress but may still achieve the goal. Progressing inconsistently means the student is inconsistent in her progress and may not achieve the goal. [D-119]

Prior to the Child entering fifth grade, the Child was “referred for an early re-evaluation for special education services by her parents”. The Child was evaluated during the summer of 2020 on the WIAT-III. The subtest indicated that her word reading, pseudoword decoding, both fell within the 2nd % and her total reading composite was within the 1st %. Her mathematics composite, numerical operations and problem solving were all within the 4th %. Mathematics fluency was within the 2nd %. The written expression composite was within the 5th % and lower for spelling and sentence composition. She did score within the 25th % in essay composition.

The summary indicated that she was functioning in reading on a 1st grade level. In mathematics, she was able to add, subtract and multiply one digit by one-digit problems, but unable to solve more advanced problems. The evaluator found that, “she did not attempt items that she perceived as being too difficult [long division, decimals, percentages, fractions”]. In her writing activities, she was able to write an introductory and closing sentence but struggled with developing her ideas and sentence mechanics. The conclusion was that there were significant weaknesses in reading, written expression and mathematics. [D-128]

An occupational therapy evaluation was conducted on 8/12/20 again at the Parents’ request. The assessment focused on their daughter’s fine motor, [handwriting], visual perceptual and sensory processing skills. The conclusion was that, though some of standardized testing scores were below average, her handwriting was readable; her visual perception was within the average range and no sensory issues appeared during the testing, thereby occupational therapy would not be recommended to the CSE. [D-132]

A speech and language evaluation was conducted on 8/12/20. The CELF-5 was used to measure the Child’s expressive and receptive language. She was below average in word classes [9th %]; following directions [1st %]; formulating sentences [5th %]; recalling sentences

[1st %]; understanding spoken paragraphs [5th %]; sentence assembly [2nd %]; semantic relationships [2nd %]; word definitions [16th %] were borderline/at risk. Core Language and index scores measure general language ability and fell within the very low/severe range [2nd %] as was expressive language [2nd %], receptive language [1st %], language memory [1st %] and in the low/moderate range in language content

[5th %]. In the area of pragmatics, she easily engaged in conversation with the evaluator, sharing personal experiences and asked and answered questions. The evaluators conclusion was that she possessed a severe expressive language disorder. [P-B]

A psychological reevaluation was conducted on 8/10/20. The Woodcock-Johnson Tests of Cognitive Abilities-4 [WJ-IV] was administered. The results were considered a valid representation of the Child’s cognitive abilities. On the Comprehension Knowledge test, she performed within the average range; on the Fluid Reasoning, she performed within the low range [4th %]; Short Term Working Memory, she performed within the low average range [34 %]; Cognitive Processing Speed, she performed within the low average range [24 %]; Auditory Processing, she performed within the low range [6th %]; Long Term Retrieval, she performed within the low range [8th %]; Visual Processing, she performed with in the average range [59 %]. The evaluator concluded that the Child preferred visual tasks. Her cognitive processing speed struggles were evident particularly when pressured to pay focused attention on tasks; she struggled with problem solving with novel information [transference], abstract reasoning and understanding relationships, analyzing information present orally were also areas of weaknesses. Overall, she had difficulty retrieving information previously presented and tested within the low average range [10th %] compared with others in her age group. [D-141, D-145]

2020-2021 School Year-5th Grade

On 9/2/20, the CSE met to conduct its reevaluation review. The appropriateness of this IEP is also being challenged by the Petitioner. The attendees in the CSE meeting were: the special education coordinator, the special education and general education teachers, the social worker, the psychologist, the occupational therapist, the speech and language therapist, Parents and their Advocate.

The IEP noted that the Child required a small group or individualized instruction to succeed. This would be a change of her special education program from the previous co-teaching integrated program. It also appeared that two subject areas would be departmentalized within the self-contained special education program, namely, English/language arts and mathematics. The Parent noted that the Child was “so far behind” in her skills and that the pandemic had put her further behind. Core reading and mathematics skills were difficult for her and she was functioning at approximately the first-grade level. Her receptive language [2nd %] and expressive language [1st %] were severe. During the CSE meeting, there were discussions regarding changing her classification to Autism, but the decision was made to continue the learning disabilities classification given her appropriate pragmatic skills. Her needs were in the areas of mathematical concepts and operations; written expression; decoding and comprehension and following directions. Her IEP goals would focus on decoding, fluency and comprehension; written expression; mathematics problem solving using the four basic operations; the use of grammatically correct sentences and being able to follow multi-step directions. It was not recommended that she receive an ESY program for the following summer. The Prior Written Notice dated 9/3/2020, indicated that there were no other options considered, the IEP recommendations were a change of special education program and that the self-contained special education class was the only option the CSE considered. [D-100, D-170]

At the request of the Parents, the CSE met again on 10/29/20 to discuss the AIS program and why it was being delivered in its current form. Since the AIS program is a mainstream education program, the Parents were instructed to contact the building principal to discuss their concerns. So, the matter was not resolved at the CSE meeting. The Parents also requested an Adaptive Technology evaluation. The Child was currently using a chrome book and had technology assistance if needed, therefore an Adaptive Technology evaluation was not required at this time, and the request was denied. The remaining part of her special education program and speech and language services remained the same. [D-171] The MAP student progress report [Winter-2021] indicated that for mathematics operations and algebraic thinking, measurement and data, number and operations and geometry were all rated at the low level. Her reading for understandingly ideas, details and connections, acquisition and use, understanding language, craft and structure were all in the low level. {D-38]

On 1/6/21, the CSE conducted a program review. The Parents requested that the District conduct a neuropsychological evaluation [IEE]. The Parents’ request was denied, believing that their evaluations were adequate. The District was now reopened for in person instruction. AIS was provided once a week, which was increased to twice a week. It was determined that the school staff would continue to observe the Child’s to monitor her progress. The school psychologist would conduct an Autism Rating Scale assessment to address the Parents’ concerns. No other change was made either to her goals, program or services. [D-107, D-172]

On 2/26/21, a private comprehensive neurodevelopmental evaluation was conducted. The payment for this evaluation is being challenged by the District. This evaluation purpose was to identify the linkage between the Child’s performance and profile. Selected standardized instruments were utilized as well as a summary of the Child’s medical, social and emotional information. Behavioral observation indicated that there were times when she had difficulty understanding instructions of complex language within tasks that were presented to her. She appeared to fatigue easily when the task required a great deal of effort. Attentional issues on tasks were primarily due to the interplay of her other challengers.

The evaluator surmised that the Child displayed basic nonverbal higher thinking skills in her capacity for reasoning, logical thinking and concept formations especially if the material was presented visually; she could place pictures in order to convey a number of logical narratives especially in the absence of language; she was able to “look beyond superficial differences and categorically”. She could form grammatically correct basic sentences as long as they were not too complex. Her spatial output was an asset. Her visual memory allowed her to learn and recall information, as well as remember how words looked and spelled. Despite all her special education needs, she remains highly motivated to learn.

Testing results indicated that the Child had difficulty with complex sentence comprehension and instruction verbally presented. This would put her at a disadvantage in a classroom setting. These weaknesses would also contribute to her difficulty communicating with peers. Her phonological processing and sequencing ability would make the decoding of words difficult. She made mistakes in word identification, in substituting words which all led “to impulsive guessing” when decoding. Her active working memory was limited, which prevented her from mentally suspending the sounds and word attack rules when reading longer words. Reading and listening comprehension presented difficulties in understanding complex sentences, word order, adverbs, adjectives and verbs. She had difficulty understanding lengthy passages and how multiple sentences related to one another. She struggled with sequencing essential content. She had difficulty recalling the rules and the sequencing of letters for accurate spelling. Her weakness in oral expressive language hindered her written expression. She had difficulty putting together multiple sentences to effectively communicate her ideas orally or in written form. She had a limited active working memory which affected all aspects of her written expression.

The acquisition of mathematical skills was made difficult by her inadequate acquisition of language. The difficulty of understanding the language of mathematical procedures and concepts interfered with her ability to progress in this area. She had difficulty holding together the various steps in the process. Her weak active memory prevents her from acquiring the information and then making use of that information, whether it be in reading comprehension or mathematical problem solving.

The evaluator concluded that the Child was smuggling in all aspects of her academic performance. She presented such complex needs in all learning situations. An educational plan was presented that included the need for a language based special education program with multisensory instruction. [1] The coordination and integration of the speech and language therapy in her classroom would enhance her learning. [2] Class groupings should include learners of similar challengers. [3] Remedial instruction should be provided in a 1-1 setting for reading, math and written expression. [4] finally, the Child should be in a 12-month program [ESY] to prevent regression of her skill development. The report recommends a number of strategies and resources to support her special education program. There were accommodations and alternatives listed in the evaluation.

The evaluator also noted that the Child’s past sensory and behavioral history at five years of age, had changed, whereby significant progress has been made to the [Autism] symptoms.

The evaluator summarized his findings to explain the Child’s learning profile. He stated in the report, that she was capable of conceptualizing visually and her cognition being in the nonverbal area. She required visual cues when asked to retrieve information. Her semantic and sentence understanding abilities were enhanced through a multiple-choice format. She was “able to construct complete sentences from word prompts”. Spatial ordering was a strength. Her short-term memory and long-term storage were areas of weakness when information was presented orally. She had difficulty with multiple step directions. Word retrieval and phonological processing were other areas of weakness as in decoding, spelling impacted her comprehension. She had trouble constructing complex sentences. She experienced great difficulty with her understanding whole and rational numbers. She struggled with all measures of academic fluency, whether it be reading, writing or mathematics. It was also noted that during the evaluation, it took her an extraordinary amount of time to complete challenging tasks. She would fatigue easily. If asked to regroup mathematic operations, she was prone to errors. Mathematical word problems using basic skills were difficult for her. Overall, she was challenged in her accuracy and understanding of math calculations and word problems. A cognitive full scale was not given for this evaluation due to the manner the testing was organized and presented to the Child. [P-A, T-pp 1783-1786, 1792, 1795, 1798, 1799, 1804, 1806, 1854, 1855-1856, 1870]

On the MAP dashboard, the Child achieved mastery when asked to subtract a 2-digit number within 100 [1st grade skill]. She also achieved mastery when asked to multiply 1-digit by 1-digit [2nd grade skill]. Dates completed were 11/9/20 and 3/9/21 respectively. [D-26 & D-27]

On the Child’s Reading Running Record A-Z [3/3/21], she read with 93 % accuracy rate for Level J [2nd grade]. [D-43] For computation base ten strand [4/30/21], she completed 9 of 26 skills. [D-21] The Child received AIS in math via a Google classroom on Mondays, Tuesdays and Wednesdays. The initial focus was on developing her skills in multiplication and division at the grade level standard. In the fourth quarter, the focus was understanding and solving multiplication and division problems; understanding and solving problems fractions and decimals at grade level standards. She also received AIS for English and language arts via the Google classroom in the areas of thinking within the text, thinking beyond the text and thinking about the text. It was scheduled for 180 minutes in the six-day cycle. The work focused on phonic rules and language skills [i.e., syllable division rules]. [D-9] The Gallistel-Ellis Test of Decoding Skills [4/26/21] identified that the Child needed to continue to work on words in isolation [CVC, CVCE & vowel team] [D-44] Her progress in computation base ten strand, indicated that she completed and mastered 3 of 26 skills and 2 of 43 skills, and 9 of 26 skills, respectively. [D-22, D-23], D-30] The Child’s progress towards her IEP goals in the final quarter for the 2020-2021 school year, indicated that she learned her multiplication facts; formulated 10 grammatically correct compound sentences in her speech and language sessions; stated conclusions and made inferences that boded on a written text when read aloud. In the area of decoding, she constantly used retaught vowel team rules; she had increased her reading rate to 57.9 and read at independent Level M [2nd grade]; she was able to successfully answer questions about the main idea; her spelling and run on sentences continued be problematic; she required support when applying addition and subtraction fact fluency to multi-digit addition and subtraction computation; she required teacher support for division of fractions; within the context of speech therapy, she was able to follow 2-3 step directions without difficulty. [D-194] The Child’s 4th quarter report card indicated that her independent reading level was Level M [2nd grade], with a benchmark Level U

[5th grade], a three-year gap with her peer group. Her teacher indicated that she needed improvement with her reading of literature; foundational skills; writing skills; listening and speaking, mathematical operations and concepts, but was proficient with mathematical problem solving. The teacher noted that she showed gains in her accuracy, reading rate and comprehension. She continued to show some inconsistency with applying the phonics rules in her writing tasks. [D-193]

Applicable Standards

IDEA, the federal Act, amended the Education for All Handicapped Children Act, which required states to develop plans to assure “all children with disabilities the right to a free appropriate public education” [FAPE]. FAPE must include “special education and related services” tailored to meet the unique needs of a particular child and be “reasonably calculated to enable the child to receive educational benefits” The IEP must be in conformity with a FAPE. [ 34 CFR 300.17 [d], Board of Educ. of the Hendrick Hudson CSD v. Rowley, 458 U.S. 102 S.Ct. [1982]]. The Rowley decision was expanded in Endrew F., which stipulated that the IEP must be more than the bare minimum. [Endrew F. Douglas Cty. Sch. Dist. RE-1, 580 U.S._ 137 S.Ct. 988,999 [2017] The law expresses a strong preference for children with disabilities to be educated, to the maximum extent appropriate, together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child’s needs. Only when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily should a child be segregated. In such cases, instruction may be provided not only in special classrooms, but also in the home, in hospitals and institutions and in other settings. Indeed, a school board may be required to place a child in a residential institution if such a placement is necessary to provide an appropriate education.

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under IDEA [ Grim v. Rhinebeck Cent. Sch. Dist. 346 F. 3d [2d Cir. 2003]]

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: [a] impeded the student’s right to a FAPE, [b] significantly impede the parents’ opportunity to participate in the decision making process regarding the provisions of a FAPE to the student or [c] caused a deprivation of educational benefits. [Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp, 2d [S.D. N.Y. 2007] The IDEA directs that, in general an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [see Rowley], the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP [Walczak, 142 F. 3d at 130, see Rowley]. The statue ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” [Walczak, 142 Fd at 132]. Additionally, school districts are not required to “maximize” the potential of students with disabilities. [see Rowley at 189, 199, Grim at 379 and Walczak at 132]. Nonetheless, a school district must provide “an IEP that is “likely to produce progress, not regression” and.....affords the student with an opportunity greater than mere “trivial advancement” [Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d at 195, Walczak at 130]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [see Rowley at 192], since amended to be “meaningful educational benefit” [Endrew F. v. Douglas Cnty. Sch. Dist. 137 S.. Ct. 743, 89 IDELR 174 [U.S. 2017]

Since New York State [State] receives federal funds under IDEA, it is obligated to comply with the requirements of IDEA. To meet these obligations and to implement its own policies regarding the education of disabled children, the State has assigned responsibility for developing appropriate IEPs to local Committees on Special Education [CSE], the members of which are appointed by school boards or the trustees of school districts. In developing an appropriate IEP, it must reflect the results of the initial or most recent information from evaluations to identify the student’s strengths, needs, establishes annual goals related to those needs, and provides for the use of appropriate special educational services [Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059]. A CSE is also required to consider four factors: [1] academic achievement and learning characteristics, [2] social development, [3] physical development, and [4] managerial or behavioral needs. [ CR Part 200.1 [mm or zz]]

Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. It is improper to assume that every IEP is invalid until the school district demonstrates that it is not. [Weast v. Shaffer, 126 S. Ct. 528, U.S. Sup. Ct. [2005]. In 2007, the New York State Legislature amended the Education Law to place the burden of persuasion and production upon the school district during an impartial hearing regarding the appropriateness of such placement [Educ. Law 4404 [1] [c], as amended by Ch. 583 of the Laws of 2007]. The amended statue took effect for impartial hearing commenced on or after October 14, 2007 [see Application of Bd. of Educ., Appeal No. 08-016].

Discussion

IDEA requirements of a FAPE are satisfied when the State provides personalized instruction with sufficient support services to permit the student with a disability to benefit educationally from instruction. [see Rowley] The Court ruled that student’s program must be “appropriately ambitious and provide ‘challenging objectives in light of his or her unique circumstances”. [see Endrew F.] School districts must be able to offer a ‘cogent and responsive’ explanation for their decision that show the IEP is reasonably calculated to enable the student to make progress appropriate in light of his or her circumstances.

In order to understand the special education needs of the Child, I looked at her profile and benchmarks identified in the previous school years school records to determine if she had benefited and made progress from her special education programs. The Subcommittee on Special Education developed an IEP on 5/22/17 for the 2018-2019 school year, this is the year the District argued was beyond the Statute of Limitations as prescribed in the Commissioners Regulations Part 200.5 [j] [1] [i]. The one exception is “if the parent was prevented from requesting the 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 from the parent that was required to be provided to the parent under the Part or under Part 201 of this Title”. The Petitioner claims the District had the burden of establishing that the Statute of Limitations bars any portion of the Parents’ claim. The Petitioner claims that they were under the impression that their Child “was receiving ESY during the kindergarten, first and second grade at the [redacted] School District. The Petitioner learned in June 2020, that their Child did not receive ESY in District, but rather through a BOCES program. The “CSE” may select the specific school without the advice of the parents as long as it conforms to the program offered in the IEP. Educational placement refers only to the general type of educational program in which a child is placed. In this instance, the program not the placement meets the requirements of IDEA and the parents specific claim as to placement is denied. [T p 1586], [T.Y. v. New York City Dep’t of Educ. 584 F. 3d 412 at 419 2d Cir. 2019], [R.E. v. New York City Dep’t of Educ. 694 F. 3d 167, 191-192 [2d Cir. 2012] To understand the sequence of events that identified the unique needs of the Child and produced the 2017-2018 IEP [D-162] and the subsequent 2018-2019 IEP, I reviewed the then current or recent evaluations and reports presented to the CSE on each of those dates in order to determine the Child’s individual special educational needs and develop her individual student profile. The psychological evaluation conducted on 1/15/16 revealed the Child’s full scale was 90, placing her within the average range, and described her as a visual learner, with weakness in her working memory and processing speed as well as being challenged when material was presented verbally. These deficits were confirmed in the speech and language evaluation conducted on 12/9/15 at which time her deficits in recalling and formulating sentences were in the 5th %; she possessed the ability to follow only 1 step direction and showed a markedly weak receptive language skills. The Woodcock Johnson IV Achievement test conducted on 2/18/16 revealed a broad reading level at the 10th %, broad math level at the 3rd % and her broad writing was at the 3rd %. The educational evaluation conducted on 1/11/18 confirmed the previous severe reading deficits in phonics, sight words, blends and in written expression deficits in sentence structure, grammar, expansion of ideas, spelling and her use of words. In mathematics, her basic facts were limited and were inconsistent in her understanding the process required to solve mathematical problems. This profile was consistent with the profile presented at various CSE meeting since kindergarten. [D-139, D-147, D-159, D-47] In 2017, the Child attended the [redacted] summer reading program, which was offered to students with delayed reading skills. The [redacted] summer program is a general education program and not a special education ESY. The report described the Child’s ability to write a complete sentence and use the beginning letter of a word to identify the word. The Petitioner argued that she had no knowledge her Child was not receiving ESY until informed on June 2020, possibly mistook the [redacted] Program for an ESY program. [T pp 1587-1588] In the Fall 2017, the Parents were notified that their Child was at risk and would be placed in an Academic Intervention Services [AIS] Math program for the 2017-2018 school year [D-31] The focus of her program was to develop addition and subtraction proficiency for problem solving. [D-11]

I can only conclude from the above evaluations and reports that the Child possessed a severe expressive and receptive language deficit; a short term and long-term memory deficit which both impacted her ability to progress in the basic areas of reading [decoding, fluency and comprehension], mathematics [basic computation and problem solving skills] and written expression [spelling, sentence structure and grammar] without special education and special education services. The CSE recommendation for the 2017-2018 school year was the continuation of the special education program in an Integrated Co-teaching program [ICT] 2 hrs. 30 min. daily, with indirect consultant teacher 1-30 min. session daily and speech and language therapy in a small group 2-30 min. sessions in a 6-day cycle. The total amount of time devoted to special education and services was approximately 2 + hours per day. Hardly sufficient special education to meet the unique needs of this Child given the severity of her deficits. In addition, the Child was offered ESY for speech and language therapy, but not for special education, an area of equal need. The IEP for the 2017-2018 school year is not an issue in this hearing, but the IEP serves as a benchmark as to the Child’ special education profile going forward. [D-162]

2018-2019 School Year The Petitioner is challenging the two-year Statute of Limitations, because they allege that the District material misrepresentations of their Child’s special education program. The location of the program has been decided in an early section of this decision and is separate for the granting of a third year. [T-pp 1584, 1587-1588, D-18] In order to satisfy the requirement for a third year, one of the two conditions need to be satisfied. [ 20 USC Sec. 1415 [D] [i-ii]]

[1] specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint, or

[2] the LEA’s withholding of information from the parent that was required under this subchapter to be provided to the parent.

IDEA also refers to the action by the District to cause a deprivation of educational benefits. [see Matrejek] The CSE met on 2/20/18 [midyear] to conduct its annual review and develop an IEP. No new evaluations or reports were presented at the CSE, other than parent and teacher presentations at the meeting.

The CSE recommended a 3rd grade Integrated Co-teaching program, with Consultant teacher services [indirect] and speech and language therapy [small group]. The amount of special education programming totaled 2 hrs. 30 min. daily and speech and language services constituted approximately 2-30 min. sessions every 6 days. The special education teacher in the Co-teaching program was also assigned a kindergarten class in the morning. The remainder of the general education school day was not identified in the 2018-2019 IEP. At the time of the CSE meeting, the Parents informed the CSE of their concerns of the then Child’s “dyslexia and …spelling program” and her regression in reading skills. They requested additional special education or services.

It is evident that the Parents did not possess the knowledge of the specific details of their Child’s special educ

At the meeting, the Child was described as cooperative and “tries her best”. In structured tasks, she was ‘understood 90%’ of the time, but less so in conversational speech. Her expressive language needs included: her inability to formulate grammatically correct sentences; her inability to use appropriate 3rd grade vocabulary, her inability to follow 2-3 step directions as well as answer ‘WH’ questions. Her receptive comprehension skills were a strength. It was reported at the CSE meeting that the Child reading a Level E [beginning first grade, level-basal equivalent preprimary 3], which was significantly below grade level. Comprehension skills were stronger due to her cognitive reasoning skills. The Child’s special education teacher testified she actually was reading at Level D [PrePrimer-2, beginning 1st grade level], which continued throughout her year in third grade. He testified that she showed weaknesses in word attack skills, phonics and word blends. She struggled with spelling, though some progress was made in expanding on her ideas in writing expression. She lacked basic math skills to solve grade level problems. [D-159, D-187,

T pp 275, 277, 309, 787, 796] The CSE developed goals to improve her attention to tasks; to decode words at a third grade level; to read words fluently, accuracy and rate at a third grade level; to spell correctly words in her writing from literature/content area subjects; to create complex or compound sentences and label parts of speech; to use mental computation and estimation to solve math problems; to identify and describe four patterns; to identify synonyms and antonyms; to formulate grammatically correct sentences; to follow a 3 step direction and will to attributes and functions of objects.

The CSE, given the severity of this Child’s disability, especially in the area of long term memory, did not consider changing or amending the IEP or consider other placement options [as shown in her math fluency, her problem solving and numerical operations, each in the range of 1st % to 4th %, and her basic reading level at the 1st %]. [ CR Part 200.4 [f] [2], [g] [1], D-127, D-149, T p 793] The current evaluations or reports do not support the current special education program and services. Her special education teacher testified that she struggled and required support in all academic areas. [T p 752] The IEP was insufficient and inadequate, therefore did not provide a FAPE. It did not provide the Child with adequate personalized instruction given there were 2 hrs. and 30 min. of non-special education class time that was unaccounted for in the IEP. The Child’s Fall AIS placement further indicated that the District recognized that additional services were needed due to her poor results on the New York State tests. Rather than returning to the CSE to revise the IEP, it chose to use the AIS program, a general education program, to supplement her special education needs. [T pp 753, 767-768, 800-801] The IEP goals developed misrepresented her unique needs. Her reading and writing goals far exceed her ability to achieve those goals within the year they were to be introduced. [T p 798] To imply, through those IEP goals, that she could achieve at a 3rd grade level, when she was functioning at a beginning 1st grade level, was an unreasonable and unrealistic expectation. Furthermore, it mischaracterizes the evaluative and report data the CSE had before it. In IDEA, for FAPE to be achieved, it must include “special education and related services to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits”. [see Rowley] The Supreme Court has indicated that, “the IEP must aim to enable the child to make progress. After all, the essential function of the IEP is to set out a plan for pursuing academic and functional advancement”. The bar is set high, and the IEP is the plan to achieve benefit, but not written in a manner that eliminates the critical steps to achieve the results desired. At the end of the 3rd grade, the Child was functioning at a first-grade level in reading, mathematics and written express, indicating that she did not progress or benefit from her 3rd grade special education program. [see Rowley, Endrew, 34 CFR 300,17 [d]]

I therefore conclude that the two-year Statute of Limitations does not apply in this instance, because of “specific misrepresentations the CSE made it had resolved the problem forming the basis of the complaint”, namely the Child did not progress or benefit from the special education program. The problem reflected in the District’s data was that the Child was misplaced in her special education program and there was noticeable deterioration in her academic skills in comparison with her peers. The evidence and testimony provided at the hearing indicated that Parents did not fully grasp the options that were available to them other than raised their concerns to the CSE members. The CSE never discussed other options with the Parents. The matter of compensation will be addressed at the end of my decision after considerations of the other issues raised in the Complaint. AS stated earlier, the statute of limitations does not apply in this instance. [20 USC Section 1414 [c] [i] [A], 1415 [D] [i] [ii], D.K. v. Abington Sch. Dist., 696 F. 3d 233, 246 [3d Cir. 2012], R.B.v. N.Y.C. Dep’t of Educ.,57 IDELR *6, [S.D.N.Y. 2011], Draper vs. Atlanta Independent School System, 518 F. 3d 1275 2008, Damarcus S. v. District of Columbia, 190 F. Supp. 3d 35 [D.D.C. May 23, 2916], G.L. v. Ligonier Valley School District Authority, 802 F. 3d 601, 625, 626 IDELR 91 [3d Cir. Sept. 22, 2015], D-90, D-127]

2019-2020 School Year-Fourth Grade The IEP developed for the 2019-2020 that is being challenged in the Parents’ Complaint. [D-165] The CSE met on February 4, 2019 [midyear] to develop the IEP the 2019-2020 school year. The CSE meeting was a reevaluation and annual review meeting. In attendance were both her special education and general education teachers, the special education coordinator, the speech and language therapist as well as the parents. Absent from the CSE meeting was the school psychologist, which the Petitioner is challenging the statutory composition of the CSE.

The CSE had available updated evaluations and reports, including the WIAT-lll, WISC-V, Speech and language evaluation as well as presentations by her teachers and Parent at the meeting. The Child’s classification was changed from speech impaired to learning disability. The classification was an issue in the Complaint.

The Child’s teachers identified a number of academic and functional areas that were necessary to pursue. They identified skill areas in reading [CVC words; phonic skills, sight word recognition skills, letter sounds]; ‘why’ questions; short vowels within spelling words; details in her written expression, in mathematics, multiplications skills; problem solving skills and three-digit addition and subtraction with renaming. In speech and language, phonological awareness, vocabulary, word retrieval, grammar and syntax with various stance types and complexities. It was reported that the Child was reading in the Fountas & Pinell, Level D [PrePrimer-2]. She continued to struggle with her phonic skills [1st %, 2nd %], comprehension skills beyond the text and her expansion of ideas in her writing [2nd %]. Her mathematical fluency, numerical operations continued to be problematic [1st %. 2nd %, & 4th %] The Child continued to struggle across the curriculum.

Cognitive ability was within the average range [FS 92] with strengths in her verbal skills, visual spatial skills and processing speed. Weaknesses continued to be in the area of auditory working memory [2nd %, 12 %].

Her Core Language index fell within the low range to moderate severity. Her strength was in understanding relationships between words. Her weaknesses were with her receptive vocabulary skills [2nd %, 3rd %], such as word and sentence retrieval; grammar and syntax with varied sentence types and complexity; two- and three-word commands, recalling story details and sequences. Additionally, the Child presented skill deficits phonological awareness, which negatively impacted her literacy skills. The speech therapist concluded that the Child required a highly structured instructional environment, with small group instruction so reteaching and multiple opportunities for the practice newly learned skills.

The Parents concurred with the evaluations results seeing their daughter was struggling with her reading skills. [D-127, D-142, D-149,

T pp 790,799, 813-814, 816-817] The Child’s special education program and services continued in the Integrated Co-teaching program [2hr. 30min. daily], consultant teacher [indirect] and speech and language therapy small group [2-30 min. per 6-day cycle]. She also received Academic Intervention Services [AIS], because she scored Level 1 on the New York State Assessments, which were well below proficient for grade level standards. The AIS service ceased on March 13, 2020 when the COVID protocols were put in place.

There were multiple components during the course of the Child’s placement in 4th grade. Her special education teacher testified that she provided the specialized instruction in reading, writing, mathematics, social studies and science. The Co-teaching program included a general education teacher in a class of approximately 25 students. The in person instructional program ceased on March 13, 2020, which impacted some of the third quarter and all of her fourth quarter progress.

The District used Fountas and Pinnell’s for the reading benchmarks, which provided a guide to assess her reading level. At the end of the second quarter, the Child was reading at Level F [Primer level], benchmark Level P [end of 3rd grade]. The reading program used in both the special education class and in the AIS was Wilson, a multi-sensory reading program. The reading methodology of Orton Gillingham, Wilson and SPIRE, used by the District were not an issue in this hearing. The AIS service was a general education supplemental program for those students who perform poorly on the State Assessment tests.

The focus of the special education program was decoding, reading comprehension and basic math operational and problem-solving skills. Her special education teacher testified that the Child’s weak memory affected her mastery of basic math facts. Her reading skills were “significantly below grade level” [3 years below grade level]. Her written expression was described as “contain[ing] very simple ideas and connections and that her sentence structure [was] fragmented” and not commensurate with her peers. Her end of year report card indicated that she either performed unsatisfactory or needing improvement in reading, writing and mathematics. The end of year status of the IEP goals indicated that the Child was unable to read grade level content words, was inconsistent recognizing sight words, substituted sounds in the final portion of words and inconsistent in applying basic mathematic skills to solve problems. She could identify symbols in a word, read two syllable words and write consecutive sentences on a topic. Much of what was achieved was by the teacher reading the problems or text to her, using visual pictures to support the narrative and by modeling, using repetition and reteaching. One can only conclude that the IEP did not provide progress or benefit for the Child and she regressed educationally in the first half the school year and significantly in the second half of the school year. [D-19, D-34, D-187, D-119, T pp 557-558, 567, 574, 582-583, 635-636, 642, 645, 653, 1045]

Discussion and Decision for the 2019-2020 School Year

Two purposes of the IDEA [20 U.S.C. 1400-1482] are [1] to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services to meet their unique needs and prepare them for further education, employment, and independent living; and [2] to ensure that the rights of students with disabilities and parents of such students are protected. [ 20 U.S.C. 1400 [d][1][A-B]; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]] A FAPE is offered to a student when [a]……….[b] the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to received educational benefits. [see Rowley] Adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. [Walczak v. Fla. Union Free Sch. Dist., 142 F. 3d 119, 129 [2d Cir. 2009] The Supreme Court has indicated that “the IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” [Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S._, 137 S. Ct. 988, 999 [2017] Under IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies [a] impeded the students right to a FAPE, [b] significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, [c] caused a deprivation of educational benefits [20 U.S.C. 1415 [f][E][ii]; 34 CFR 300.513 [a][2]; R.E. v. New York City Dep’t of Educ., 694 F. 3d at 190]

A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [Rowley, 458 U.S. at 203] However, IDEA does not itself articulate any specific level of educational benefit that must be provided through the IEP [Walczak, 142 F.3d at 130]. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” [Endrew F., 137 S. Ct. at 1001]. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and…affords the student with an opportunity greater than mere ‘trivial advancement’” [Cerra v. Pawling Cent. Sch. Dist. 427 F. 3d at 195, quoting Walczak, 142 F. 3d at 130] The IEP must be ‘reasonably calculated to provide some “meaningful benefit” [see Endrew F., 137 S. Ct. at 1001] An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance, establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enable him or her to make progress in the general education curriculum and provides for the use of appropriate special education services. [ see 34 CFR 300.320 [a][1]; CR Part 200.4 [d][2][i] [iii]]v]].

During the 2019-2020 school year [fourth grade], the District asserts that the ICT, daily AIS service, speech language therapy and in the past, the [redacted] program were appropriate programs for the Child.

In person academic instruction ceased after March 13, 2020 due to COVID-19 pandemic for the remained of the school year. School Districts were required to provide a FAPE to students with disabilities during school closures caused by COVID-19 if educational services were provided to the general student population. Approximately two weeks after the ‘shut down’ for in person instruction, the IEP was provided remotely. It was required that the IEP be implemented by the District materially and substantially so as to allow the student to make progress during this time. The responsibility for implementing the IEP in the remote classroom remains with the District and cannot fall to the Parents. [120 LRP 10623 [OSERS/OCR] March 21, 2020, Brookings Sch. Dist.,77 IDELR 55 [SEA SD 2020]]

While AIS ceased after March 13, 2020, speech and language therapy continued through tele therapy. [T p 274] Only five sessions were delivered. The ICT program fell short in providing special education due to the Child’s attendance for remote instruction was “not very” good. IEP goals could not be accomplished by the end of the year. The District’s 16 day [redacted] program did not occur in the summer of 2020.

The Petitioner argued that the failure of the CSE to recommend ESY for their Child, resulted in no progress at all in reading in the third grade [prior year] and in the period preceding the schools closing on March 13, 2020.

The Petitioners contended that the Child’s updated District testing on the WIAT III supports their conclusion [i.e., basic reading in the 1st %, math fluency in the 4th %, decoding in the 1st %, sentence composition in the 1st %, with other subtests ranging in 5th % to the 9th %. Her special education teacher testified that reading was difficult, significantly below grade level and overwhelming. She testified that she was reading at the end of 1st grade, beginning 2nd grade, though the Child was in 4th grade, 2 to 3 years behind her classmates. [D-128, D-127, T pp 635-636, 651-652]

It is further argued that current testing on the WISC-V, placed the Child within the average range of cognitive abilities and possessed adequate reasoning abilities for her to progress in her special education program. [D-142]

Declines on the CELF-5 in expressive and receptive language supported their contention that the Child was not making progress in those areas, yet no increase in services were forthcoming, despite the concern expressed by the speech and language therapist at the CSE meeting. The therapist testified that the Child’s language disability was severe.

[ CR Part 100.4 [f] [2] [g]D-149, T pp 307, 309, 310] The Petitioner testified that virtual learning was very difficult for their Child. The classwork was too difficult for her. The Parents were unable to support their Child with her assignments due to their own learning disabilities. [T pp 634, 1610, 1621] The 2019-2020 school year for the Child was in two parts, one pre COVID-19 which covered the period from September to February and the COVID-19 period from March to June.

The Child’s circumstance had changed, but her educational profile, that she brought to the learning environment, had not changed. Throughout the hearing, testimony was given as to the progress the Child was making. Progress is a broad unspecified term that can only be explained in terms of a specific educational skills and outcomes acquired. The District contends that specialized instruction was provided in the ICT program within a class of 25 students. Yet, the Child’s teacher testified that there was no reading improvement, nor in her math skills or in her written expression. [T pp 639, 640, 644-645, 647-648]

AIS was also provided during the first part of the school year. AIS is general education program and does not fall into the category of specialized special education instruction no matter what reading and mathematics mythology was employed. AIS does not participate in the CSE process, nor is accountable to the CSE, or is it listed on the IEP as a general education program. During the second part of the school year, AIS services were not provided to the Child. [T pp 1040, 1045] The question before me was the CSE’s recommended special education program and services appropriate for this Child, and was it capable of providing her with instruction whereby she could benefit from that instruction in a meaningful manner and provide her with the basic skills that will allow her to partake from future education, employment or participate fully in her community [FAPE] [see Rowley].

I can only conclude that the IEP developed by the CSE for the 2019-2020 school year was deficient and inadequate to address the unique needs of this Child and therefore was not providing meaningful benefit nor sufficient progress. Over the years, she had repeatedly tested in the 1st % to 4th % in numerous District’s speech and language evaluations and achievements assessments. Report card assessments showed that she was unable to perform at a competitive level with her peers. She performed either unsatisfactory in her reading skills, needed improvement in her writing skills and unsatisfactory or needed improvement in her math skills. Her scores on the State Assessments were at the lowest level. Her independent level as defined by Fontinas & Pinnell, places her in the Pre-Primer level in reading while attending her fourth-grade class. She was incapable of reading the grade level text making her wholly dependent of a staff member to read the text to her. That instructional format is unsustainable. Since the first grade, having participated in the District’s special education programs, the CSE had not produced an IEP that was able to have her “benefit educationally from that instruction” and were not tailored to meet the Child’s unique needs. [see Grim, E.W.K. v. Bd. of Educ. _F. Supp, 2d[S.D.N.Y. 2912; M.H. v. Monroe-Woodbury Cent. Sch. Dist., 296 F. app’x. 126, 128 [2d Cir. 2008]

A Child with a long standing severe long-term memory, expressive and receptive language deficits were recorded in both the District’s, speech and language evaluation and the neurodevelopmental report. Each evaluator stipulated, that the Child required a personalized special education program that was intense, provided 1-1 instruction and provided for opportunities for pre teaching, teaching and reteaching and practice opportunities on an ongoing basis. There was little testimony that focused on the necessity for implementing instructional procedures in this manner in all her special education programs and services. The kindergarten and first grade IEPs were appropriate plans for the Child going forward and the aftermath IEPs and their reduction of such special education support was harmful to this Child given her severe memory and language deficits. Clearly, the District knew about his Child’s serious deficits since they were identified as early as 2013 and those deficits continued throughout her school experience. The CSE never offered a ‘cogent and responsive’ explanation for their decision in the second grade, for the reduction of program and services, nor making any effort to respond to the Child’s lack of progress during the following years. [see Endrew F.] In testimony during this hearing, the linguistic link between the Child’s speech and language and reading deficits were made by both the speech and language therapist and the neurodevelopmental evaluator. What was lacking in the implementation of the special education program was the integration of those reading and linguistic services, namely, the special education program and speech and language therapy. The program and services were provided in separate locations and independent of one another creating an inefficient learning environment for this Child given her severe memory and language deficits. Furthermore, given the harm the CSE’s program did in addressing this Child’s unique needs, an ESY is an appropriate remedy going forward, because she required an eleven month school year in a structured learning environment to prevent regression. My conclusion is that the 2019-2020 IEP was inadequate and deficient in that it did not provide the specialized instruction to meet the unique needs of the Child nor an ESY that would have provided special education and services that would prevent regression given her inability to hold onto instruction over a long period of time. [ D-137, D-142, D-147, D-149, CR Part 200.1 [eee]]

Discussion and Decision for the 2020-2021 School Year The CSE met on January 31, 2020 [midyear] to conduct an annual review for the 2020-2021 school year [fifth grade]. The special education coordinator, the general and special education teachers, the school principal and the parents were present. Absent from this meeting were the school psychologist and the speech and language therapist, both essential members of the CSE. Given the severity of the Child’s disability in both the long-term memory and her expressive and receptive language, their presence would have provided invaluable information and guidance to the CSE and perhaps alter its recommendation.

According to the IEP, there were signs that the Child was losing motivation in that she was “not always willing to put herself out there” [take risks] and she required assistance in keeping her momentum going when a challenge arose. She struggled with her writing; directions needed to be clarified and explained to her and she struggled to add sufficient details to her writing, as would be expected at her grade level. Her writing mechanics and grammar were deficient. At the time of the January CSE meeting, for her second quarter, the F & P independent reading Level was F [Primer] with a benchmark of Level R [mid-4th grade]. There was a three-year gap between her reading skills and the expectation for her grade.

Her speech and language therapist noted that her placement needed to be in a highly structured small group environment with instruction implemented with repetition, reteaching, visuals and multiple opportunities to practice language skills. Her weaknesses were noted to be in vocabulary, grammar and in the expansion of her sentence length and complexity.

Despite the three year gap and adverse effect it had on Child’s performance in her basic skills, the CSE continued to recommend the Integrated Co-teaching program [ICT] for ELA and mathematics for approximately two hours daily, as well speech and language therapy, 2-30 min. sessions per 6 day cycle. [D-164] The Child’s academic achievement, functional performance and learning characteristics for reading were identified as: decoding, spelling and comprehension skills; in mathematics, understanding mathematical concepts, addition, subtraction, multiply and division skills and mathematical problem solving; for written expression, writing mechanics, writing complete sentences; for speech, the use of appropriate verbal communication skills, following written and oral directions; other skill deficiencies listed were ability to transfer concepts, completing assignments on time and improve her short and long term memory. The goals developed to address the Child’s functional performance were as follows:

[1] will correctly decode the words.

[2] will read words fluently with accuracy and at the appropriate rate.

[3] will answer questions from the text about characters, setting, main idea, theme and key details.

[4] will use the writing process to plan, edit and revise her writing.

[5] will compute addition, subtraction, multiplication and division problems.

[6] will solve multi-step word problems.

[7] will lean her multiplication facts.

[8] will state conclusions and make inferences based on a written text read aloud or other formats.

[9] will generate definitions for words containing prefixes and suffixes.

[10] will formulate grammatically correct compound sentences. [D-164]

After the CSE met on January 31, 2021, and prior to the 2020-2021 school year, a speech and language evaluation was conducted on August 12, 2020. Areas identified as difficult were: following two step commands [1st %]; formulating sentences using adverbs, subordinating conjunctions; planning and producing sentences for conversation, classroom discourse, academic interactions and written language [5th %]; applying working memory to linguistic content and structure [1st %]; understanding the main idea, memory for facts and details, recall of event sequences and making inferences and predictions [5th %]; manipulating given words to formulate grammatically and semantically meaning sentences [2nd %]; interpretation of meaning relationships presented verbally or in text materials [2nd %]; listening and comprehension skills [2nd %]; recalling sentences and sentence assembly [1st %]; oral aspects of semantic development [5th %]; recall and follow spoken direction [1st %]. Pragmatic skills were deemed to be age appropriate. It was concluded that the Child possessed a severe receptive language disorder. The evaluation was viewed as a valid representation of this Child’s abilities. [P-B]

A psychological evaluation was conducted on August 10, 2020. General intellectual ability was within the low average range; she possessed a strong ability to acquire general knowledge and tested within the average range; short term memory and visual processing were her strengths; she struggled to pay focused attention to a task; struggled with problem solving with novel information, abstract reasoning and understanding relationships; she had difficulty with retrieving information previously stored. The evaluation was deemed to be a valid representation of her abilities as measured on the WJ-IV. [D-141]

An Academic Achievement Assessment was conducted on 8/10/2020.

The Child demonstrated difficulties in recognizing familiar words and decoding unfamiliar words. Reading comprehension both literal and inferential were below average and below grade level. She struggled with developing her ideas in her writings. In mathematics, she was able to solve simple addition, subtraction and multiplication problems. The evaluator concluded that, “there were significant weaknesses in the reading, written expression and in all mathematical areas”. [D-128]

At the request of the Parents, the CSE met again on 9/2/2020. Attending the CSE meeting were the special education coordinator, special and general education teachers, speech and language therapist, social worker, psychologist, occupational therapist, and the Parents and their Parents’ advocate. The focus of the CSE meeting was to discuss the appropriateness of the current 5th grade ICT placement and the consideration of other options. [D-170]

At the CSE meeting, speech therapist indicated that the Child would “benefit from a smaller setting”, presumably a self-contained special education class. The Parents agreed with the speech therapist’s recommendation. The CSE made a change of program and recommended a special education class [12:1:1] daily and speech and language therapy 3-30 min. sessions per 6-day cycle. The ESY was not recommended in this IEP.

The Child was described as having a severe reading disability which interfered with her education. The areas identified were: phonics, decoding, fluency and comprehension skills. Basic math facts and word problems continued to be areas of difficulty for her. In addition, she had weaknesses in her use of vocabulary, grammar and with her expansion of sentence length and complexity. Her Core Language Index fell within the “very low range and severe severity”. Cognitive skill deficits were in problem solving with novel information, abstract reasoning and understanding relationships, analyzing information presented orally and with long term retrieval of information previously stored information.

The functional need areas identified on the IEP would serve as the basis for the Child’s goals and were: understanding mathematical concepts, addition, subtraction, multiplication skills, mathematical problem solving, written expression, writing mechanics, expansion on ideas in her writing, decoding, spelling and comprehension skills, appropriate verbal communication, follow written and oral directions and strengthen short and long term memory.

Goals to address these needs were; decoding, word fluency, the writing process, commutation using the basic mathematical operations, problem solving multistep word problems and mastering her multiplication facts, stating conclusions and making inferences, using grammatically correct compound sentences, following 3 step oral directions. [D-170]

A subsequent CSE meeting was held on 10/29/2020 regarding the AIS service that was being provided to the Child. The CSE informed the Parents that the matter was in the domain of the school and they should follow up with the school principal. The Parents also requested an Assistive Technology evaluation but was denied since she had available to her a Chromebook and that tech support was also available to her should she need it. [D-171]

Another CSE meeting was held on 1/6/21 at the request of the Parents, who requested the District conduct a neuropsychological evaluation. The request was denied citing the District’s extensive evaluations already conducted. [D-172] The Child’s 5th grade report card indicated that she attended remote learning sessions in September and received a hybrid instruction program of both in person and remote instruction in October 2020.

Her teacher indicated that she needed to improve her reading literature skills; her foundational skills; her writing skills; her listening and speaking skills and her mathematics skills. Her teacher noted that she was inconsistent in applying phonic rules in her writing. Her end of year F & P reading level was an independent Level M [end of 2nd grade] with a benchmark of Level V [end of 5th grade]. She continued to function three years below grade level. [D-193]

She also participated in science, social studies in her special education class and art, library, technology and physical education were in a separate location.

The Parents’ challenged the appropriateness of the 2020-2021 IEP.

In my review of the evaluative data and the report card notations, I find that they are consistent in identifying the unique needs of the Child. The academic, developmental and functional needs of the Child were clearly spelled out. It was these identified areas of deficits that get translated into the goals of the IEP. For the Parents and the professional receivers of this IEP, the goals need to be measurable, achievable and be “consistent with the student’s needs and abilities” as determined in evaluative data and as reported by the staff. In order for the goals to be measurable, they must be specific to an identifiable skill, so the implementor has clarity on what needs to be remediated. In my review of the reading goals, I find them lacking in the specifics that were to be measured. In goal number one to three, the goal is not specific to the skills to be remediated, which words, or which level text. The writing goal deals with the application of a process not a specific skill deficit and therefore is unmeasurable as written. The levels of the mathematic skills were absent for computation, problem solving and multiple facts. She will be required to state conclusion and make inferences on a written text. What level of text. Absence from the goals, which had been identified in the academic, developmental and functional needs, was the need to strengthen her long- and short-term memory. I can only conclude that the vagueness of the majority of IEP goals do not personalize instruction to a level so as to permit the child to benefit from instruction and education and FAPE.

Again, the CSE did not see the need to recommend an ESY that would provide for the continuation of special education and support special services given her severe memory deficits. This omission makes the IEP deficient. Again, given the 3-year gap in her basic skills of reading, writing and mathematics prevents her ability from fully participating in the grade level curriculum. The Child’s reading memory, and language deficits, as cited above, cannot be improved without an ESY component, because of the continuity for specialized instruction that is required in her program. The IEP is required to produce a plan that will direct the provider with the specific instructions so the Child can make progress and benefit from instruction. It is an essential part of the special education planning process to produce an IEP that would produce meaningful educational progress and not regression. I consider the procedural violations to be material and IEP inadequate and insufficient to meet her needs. [T-p 1905, P-A, P-B, D-141, D-128, D-193, 34 CFR 300.320 [a] [I], CR Part 200.4 [d] [2] [iii] [a] [b], CR part 200.4 [d] [2] [v], I.B. v. New York City Dep’t of Educ., No. 15-CV-01309-LTS, 216 WL 1069679, 67 IDELR 113 [S.D.N.Y. Mar. 17, 2016]

On another note, the persistent practice of holding CSE meetings that are held midyear inhibits the CSE from possessing accurate information on the Child’s progress for an entire full school year and should be abandoned.

34 C.F.R. 300.502 Independent Educational Evaluation

[a] General. [1] the parents of a child with a disability have the right under this part to obtain an independent education evaluation [IEE], [2] each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent evaluation may be obtained, and the agency criteria application for independent evaluations, [3] For the purposes of this subpart-[i] IEE means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and [ii] public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 300.103. [b], parent has a right to evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs [b] [2-4]. [2] if a parent requests an independent education evaluation at public expense, the public agency must without unnecessary delay, either [i] file a due process complaint to request a hearing to show that its evaluation is appropriate; or [ii] ensure that an IEE is provided at public expense, unless the agency demonstrates in a hearing that the evaluation obtained by the parent did not meet agency criteria. [3] if the public agency files a due process complaint notice to request hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an IEE, but not a public expense. [4] if a parent requests an IEE, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent education evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation. [see also CR Part 200.5 [e] [g] [1] [i-vi], 34 CFR 300.502 [c], Savit, 67 IDELR 216 [OSEP Jan 19, 2016, Baus, 65, IDELR 81, [OSEP Feb. 23, 2015] The CSE meeting met on 1/6/21 to respond to the Parent’s request for an IEE. The CSE concluded that the District’s evaluations were “complete and sufficient to determine eligibility for special education services and to make appropriate recommendations” and rejected the Parents’ request for an IEE. [D-172] The evaluation in dispute is the neurodevelopmental evaluation conducted for the Parents on 2/26/21, in light of the Child’s lack of progress and the failure of the District’s evaluations to provide the CSE with the information needed to develop an appropriate IEP.

The purpose of the IEE was to provide relevant and material information to the CSE in the IEP planning process. The individuals conducting the evaluation were a developmental pediatrician [P-M-vitae] and a neuropsychologist, both are licensed and affiliated with the NYU School of Medicine, the Department of Developmental Behavioral Pediatrics. The assessments were a cross battery of instruments, that were used to collect data on critical cognitive functions. The framework data collection, as it related to the Child’s receptive language, was to determine the level of phonological processing. Data collection on vocabulary and sentence skills all provided information of her learning profile. Using various subtests, enabled the evaluator to confirm abilities and needs from different instruments, therefore not all subtests were needed to gain an understanding of her learning profile. [T p 1854, 1855-1856] The District challenged this approach, stating that testing protocol requires that all subtest in the instruments used needed to be completed. They further argue that the WISC-IV was used, which was the older version of the WISC-V. The evaluators response to that criticism was that they used the WISC-IV qualitatively and not to secure core metrics in their diagnosis or conclusions. The evaluator testified that the selection of the instruments used was based on what each subtest was going to produce the most useful information. The evaluator testified that embedded in an academic assessment are cognitive functions and embedded in a cognitive assessment are academic functions. The District had not indicated during the course of the hearing, whether they conduct a neurodevelopmental evaluation in its IEP development process. [T pp 1870-1872]

I reviewed the District’s evaluations and for the most part found them inadequate for developing the IEP plan of the Child’s unique needs, who over the years has not progressed and was 3 years behind in her basic skills while entering the 6th grade.

A psychological evaluation was conducted on 8/13/20, which appears to have used computer base software format in the report. Terms such as average, low average, within the average range, standard scores and percentile rank do little to connect the impact of the subtests score have on the Child’s unique learning needs. The report does not provide the nature and needs that make up the Child’s profile. The evaluation does not offer specific guidance to the teacher, the CSE or the Parent as what the classroom structure or the manner of instruction her learning environment should look like. I find this report lacking for those reasons. By definition, an individual psychological evaluation means a process necessary for educational planning, with the use of a variety of psychological and educational techniques and examinations …to study and describe student’s developmental, learning, behavioral and other personality characteristics. This evaluation produced percentile and various averages but lacked details of the Child’s unique needs.

[ D-141, CR Part 200.1 [bb]] The Academic Achievement Assessment conducted on 8/10/20, identified the Child’s specific academic skill areas in reading, mathematics and written expression. These could serve as the basis for the IEP goals. However, the summary did not focus on how these unique needs could be delivered in the classroom. Again, the extensive use of terms such as low range, below average or low to average range do little to explain to the Parent nor the CSE the type of structure or instruction the Child would benefit from and make educational progress. The evaluator did make note that in tasks involving reading comprehension, she tested on the first-grade level. This was a known fact and hardly insightful to the educators implementing the IEP plan. [D-128] The social history update [7/30/20] is an outline of various categories such as parent information, medical history, parental comments/concerns and a summary of the Child’s strengths, interests. It was noted in the social history was that what had worked or helped the student succeed was a great deal of encouragement and reassurance. Given the student was 3 years behind in her basic skills, she was hardly succeeding. Her educational history was absent in the social history, an analysis of that history would have explained to the CSE the lack of progress the Child was making in her previous school years. By definition, a social history is a report of information gathered and prepared by a qualified school district personnel pertaining to the interpersonal, familial and environmental variables which influence a student’s general adaptation to school, including …..data on family composition, family history, development history of the student, health…family interaction and school adjustment of the student. The social history failed to provide the information the CSE could use in their deliberation of the Child’s educational history, programs and placements. [ D-145, CR Part 200.1 [tt]] The speech and language reevaluation was conducted [8/12/20] and in my review was quite comprehensive in identifying the Child’s profile. The one area, I found lacking in the report was the connection between her linguistic deficits and her reading disability. More could have been included in the report on the structure this Child required for her to benefit in her special education placement and program. Other than that, one criticism, I found the report comprehensive and insightful. As it turned out her placement in the ICT classroom was change in September to a self-contained classroom, which was an appropriate program for the Child at this time. By definition, speech and language service is a developmental, corrective service as is required to assist a student with a disability that has been adversely affected in their educational performance. I found that given the severity of her expressive and receptive language that the level of service offered in the IEP was insufficient given the severity of her unique needs and should be increased. [ P-B, CR Part 200.1 [qq] [zz] [11]] The individual evaluation or reevaluation shall include a variety of assessment tools and strategies including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content the student’s IEP.

[ CR Part 200.4 [b]]

After a careful review of the District’s current evaluations and reports as well as the witnesses’ testimony at the hearing, I find that there was greater clarity as to the child’s unique needs in the neurodevelopmental evaluation than in the District’s evaluations. The information was specific, written with clarity and well documented. The evaluation included specific structural environmental changes that would be required to accommodate the Child given the severity of her disability. It is also noteworthy that the District’s speech and language therapist also came to a similar conclusion. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure an IEE is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. There was no record of the District challenging the Parent’s IEE through the impartial hearing process when the Petitioners requested one on 1/6/21. The first response by the District occurred on 2/4/21 through its response to the Parents’ Due Process Complaint. The CSE did not provide the Parents with information about where an IEE may be obtained, nor the criteria applicable for an IEE, both a procedural violation and therefore a denial of FAPE. I am satisfied that the method used in the neurodevelopmental evaluation meets the definition as described in the Regulations and case law. The evaluators were conducted by a licensed neuropediatric physician and a neuropsychologist. Therefore, I agree that some payment for the IEE should be made to the Parents. [ 34 C.F.R. 300.502 [a] [1-5], CR Part 200.5 [g] [1] [i-v], Application of a Child with a Disability, Appeal No. 06-067, Application of a Child with a Disability, Appeal No. 04-082, Application of the Bd. of Educ., Appeal No. 05-009, Application of a Student with a Disability No. 08-039, E.g., Warren G. v. Cumberland Cnty. Sch. dist., 190 f. 3d 80, 31 IDELR 27 3d 768 [2d Cir. 2002], Hiller v. Board of Educ., 687 F.supp. 735, 441 IDELR 194 [N.D.N.Y. 1988]] The issue of amount of payment for the IEE evaluation must be based on a rate that is ‘reasonable and customary” for paying such an independent educational evaluation by the District. Usually, the District has written policies that exist for such payment. Since I did not receive that information at the hearing, I instruct the District to provide me with the policies that provide the going rate for such an evaluation or one that is similar such as a neuropsychological evaluation. I request this information, so that I may authorize a fair and reasonable payment for the Petitioner’s IEE evaluation. The parties may appeal this decision through a due process hearing. [ Pajaro Valley Unified Sch. Sist., v. J.S., 2006 WL 37342889[N.D. Cal. Dec.15, 2006, L.S. v. Abington Sch. Dist., 2007 WL 2851268 a *9,*10,*13 [E.D.Pa. Sept 28, 2007], C.P. Clifton Bd. of Educ.] The issue of a change in classification to Autism was raised in the Complaint. Autism means a developmental disability significantly affecting verbal and nonverbal communications and social interaction, generally evident before the age of 3, that adversely affects a student’s educational performance. Other characteristics are repetitive activities and stereotyped movements, resistance to environment changes or change in daily routines and unusual responses to sensory experiences. [CR Part 200.1 [zz] [1] The matter was settled when the neurodevelopment evaluator concluded that the Child no longer showed characteristics in the Autism spectrum, that significant progress had been made with those symptoms. There was ample testimony by the District staff regarding the Child’s relationships with peers and adults to support that conclusion. Given this information, I need not address the matter further, since matters appears to be moot.

[T pp 289-291, 401, 590-591, 666, 779,1155] The composition of the subCSE on 1/31/21 was raised in the Complaint, indicating that a procedural and substantive violation of the IDEA, when it held a meeting without a school psychologist. It also should be noted the speech and language therapist was also absent. There was a 30 minutes reduction in the Child’s special education program for the 2020-2021 school year, otherwise the special education program was basically the same as in the 2019-2020 IEP. The absence of these two CSE members, given the lack of educational progress the Child was making despite her very best efforts, renders the 2020-2021 IEP as substantially inadequate. The CSE did not sufficiently augment the program and services that were needed for this Child given the evaluative information available to the CSE. The absence of an ESY and additional speech and language services render the IEP inadequate, given her grade placement and the number of years remaining in her educational schooling. Without the addition of the ESY and additional speech and language services, the IEP cannot be considered to be “reasonably calculated to enable the child to receive educational benefits”. The center piece of the IDEA is to document the particular education needs of a disabled child and the services require to meet those needs as set forth at least annually. [see Rowley]

Compensatory Education Award

Under IDEA, upon finding a violation has occurred, the court “shall grant such relief as the court determines is appropriate”. [20 U.S.C. 1415 [i][2][C][iii]. Courts have the power to order “compensatory education” as an equitable remedy awarding additional services for children who did not receive appropriate educational services in the past. [Reid ex rel. Reid v. District of Columbia, 401 F. 3d 516,518, 522, 365 U.S. App. D.C. Cir. 2005], Doe v. East Lyme Bd. of Educ., 790 F. 3d 440, 456-457, 65 IDELR 255 [2d Cir. June 26, 2015] School Committee of the Town of Burlington, Massachusetts v. Department fo Education of Massachusetts, 471 U.S. 359, 105 S. Ct 1996, 85 L. Ed.2d 385 [1985]]

‘When a school district deprives a disabled child of a FAPE in violation of the IDEA, a court fashioning “appropriate” relief as the statue allows, may order compensatory education, i.e., replacement of educational services the child should have received in the first place.’ Under the theory of “compensatory education”, courts and hearing officers may award ‘educational services to be provided prospectively to compensate for a past deficient program, created by an educational agency’s failure over a given period of time to provide a FAPE to a student”. [RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309, 40 IDELR 4 [4th Cir. 2003], Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 249 [3d Cir. 1999], Ferren C. v. Sch. Dist. of Philadelphia, 612 F.3d 712,54 IDELR 274 [3d Cir.2010]] The District’s failure, through the IEP process, to produce for the Child good substantive results or outcomes warrants the compensatory award as follows:

[1] Due to the denial of an extended school since second grade, I award the Petitioner payment for an approved and licensed multisensory researched based summer program for the years stated in the Complaint namely the summers of 2021, 2022, 2023. Given that the 2021 summer has passed, only the following two years are approved for payment.

[2] The granting of 200 hours of speech and language therapy is dependent of the CSE reconvening and making a determination to increase the speech and language services as part of the IEP. Increasing the existent speech and language services through the IEP process is both efficient, integrated with the Child’s special education program and practical. Should the CSE not make an adjustment to the IEP to increase the speech and language services, then the Parents request for 200 hours for private speech and language services is granted.

I deny the payments for a reading evaluation and a bank of $15,000 for additional reading instruction, given I have approved payment the neurodevelopmental report, which provides a great deal of information about the Child’s reading deficits. Also, the need for an Autism assessment and ABA services is denied given the information provided above. Finally, the need for an assistive technology evaluation is also denied.

George Kandilakis,

Impartial Hearing Officer

October 25, 2021

NOTICE OF RIGHT TO APPEAL

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

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

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

George Kandilakis,

Impartial Hearing Officer

October 25, 2021