NY IHO #550186: Impartial Hearing...

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CASE NUMBER: 550186

FINDINGS OF FACT AND DECISION

Case Number: 550186

Student’s Name^[1]: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED

(hereinafter referred to as “Parents”)

Request Date/Date Complaint Filed: February 3, 2021

Date(s) of Hearing: January 24, 2023

February 15, 2023

February 16, 2023

March 9, 2023

March 10, 2023

April 27, 2023

Actual Record Closed Date: August 30, 2023

Date of Decision: August 31, 2023

Date of Distribution if Different than Decision Date: NA

Hearing Officer: Jean M. Lucasey, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON January 24, 2023

For the Student:

REDACTED, Attorney

REDACTED, Parent

For the District:

REDACTED, Attorney

REDACTED, Assistant Superintendent for Student Support Services

REDACTED, Director of Special Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON February 15, 2023

For the Student:

REDACTED, Attorney

REDACTED, Parent

For the District:

REDACTED, Attorney

REDACTED, Assistant Superintendent for Student Support Services

REDACTED, Director of Special Services

REDACTED, Special education teacher for the Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON February 16, 2023

For the Student:

REDACTED, Attorney

REDACTED, Parent

For the District:

REDACTED, Attorney

REDACTED, Assistant Superintendent for Student Support Services

REDACTED, Director of Special Services

REDACTED, School psychologist

REDACTED, Interim Director of Special Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON March 9, 2023

For the Student:

REDACTED, Attorney

REDACTED, Parent

For the District:

REDACTED, Attorney

REDACTED, Assistant Superintendent for Student Support Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON March 10, 2023

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED,CSE liaison at Private School

REDACTED, Ph.D., Psychologist

For the District:

REDACTED, Attorney

REDACTED, Assistant Superintendent for Student Support Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON April 27, 2023

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED, Ph.D., Psychologist

For the District:

REDACTED, Attorney

REDACTED, Assistant Superintendent for Student Support Services

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint filed on or about February 3, 2021, amended on March 7, 2022, and again on August 21, 2022 (“DPC"). (Ex. P-NN.)^[2] The Parents’ second Amended Due Process Complaint, (Id.), is the operating DPC in this case.

I was appointed to hear this matter on June 7, 2022, after the recusal of the prior IHO. The previous IHO held several pre-hearing conferences, (see, Ex. IHO-I), and I held a PHC on July 15, 2022, (see Ex. IHO-II). Following the July 2022 PHC, the District filed three subpoena requests, which I signed after consideration of letters re same from the parties. See, Ex. IHO-IV. Throughout the proceedings, I granted several extensions of the decision timeline at the request of the parties. Exs. IHO-II-2, IHO-III.

A hearing was held across six days: January 24, 2023, February 15, February 16, March 9, March 10, and April 27, 2023. It was a closed hearing. The Parents were represented by attorney REDACTED, and the District was represented by attorney REDACTED. Parents entered into evidence exhibits A through PP.^[3] The District entered into evidence exhibits 1 through 92.^[4] After receipt of the full transcript, the parties submitted closing briefs, (Exs. IHO-V and IHO-VI), and the record was closed on August 30, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND FACTS

REDACTED, (“Student”), is a REDACTED-year-old girl who will be entering 7th grade in the 2023-2024 school year. Exs. P-NN-1, D-1-1, D-5-1. Her eligibility as a student with a disability is not in dispute as she has been classified by the District as a student with a Learning Disability since the tail end of her first-grade year in the District. Exs. D-1, D-2, D-3, D-4, D-5, D-6.

Due to concerns of her Parents and teachers about the Student’s struggles to learn to read, she started receiving RTI for reading and math in kindergarten. Ex. P-I-2. The services continued into first grade, but the Student did not catch up to her peers in reading, despite reassurances from her teachers. Id. After two years of intervention, in August 2018, she was reading at a “C” (kindergarten) level when she entered second grade in the District’s elementary school. Ex. P-I at 1-2.

In May 2018, at the tail end of the Student’s 1st-grade year in the District, the District administered testing to the Student to assess her reading abilities after the Parent requested same in writing. R. at 650: 4-11. Data from the evaluation indicated that the Student had Reading Fluency and Oral Reading Fluency scores both in the 5th percentile, a startlingly low score considering the two years she spent in RTI/AIS and her achievement of a Verbal Comprehension Index at the 86th percentile in the same evaluation. Ex. D-19-1-3.

Given the Student’s continued difficulty with sight-word reading and decoding, her history of RTI intervention and her increasing frustration with homework, District convened a CSE on June 13, 2018, to consider whether the Student qualified as a student in need of special education programming and services. Ex. D-6-1. The team met, classified her with a Learning Disability, discussed her needs, and created an IEP.^[5] See, generally, Ex. D-6. The Parent detailed her concerns regarding the June 2018 IEP in a 15-page letter to the District, dated August 16, 2018. Thereafter, the CSE re-convened twice, refining the goals and tweaking the accommodations/modifications along the way. Compare, Ex. D-6 to Ex. D-22 and Ex. D-23.

For the 2018-2019 school year, when the Student was in 2nd grade in the District, (not at issue in this hearing), the student began her first year as a student with an IEP. She was receiving Consultant Teacher Services: Direct 2x per week (30 minutes) in the classroom, Resource Room Program 5:1 2x per week (30 minutes) and Resource Room Program 5:1 3x week (45 minutes). Ex. D-6-8. All Resource Room sessions were recommended for delivery in the related service provider’s office. Id. Her IEP goals included reading goals, a writing goal, and a math goal targeting multi-step word problems. Ex. D-6 at 7-8.

At the end of July and beginning of August 2018, REDACTED, Ph.D. (“REDACTED”), administered a neuropsychological evaluation to the Student, and she completed her report of the results of the testing on September 11, 2018. Ex. D-21-1. Dr. REDACTED’s report noted the Student’s family history significant for dyslexia. Ex. D-21-2. The report further noted that the Student was “attentive and concentrated” during the testing, leading her to judge that the data gleaned from the testing was a “reliable estimate” of the Student’s “then-current pattern of abilities.” Ex. D-21-3. The test data indicated Reading Comprehension at the 21st percentile rank and oral reading fluency at the 1st percentile. Dec. D-21-5. The Student’s composite score summary fell below average at the 14th percentile rank. Ex, D-21-6. REDACTED’s report notes that, while the Student “is socially aware and curious, important variables in learning,”( Ex. D-21-7), she had difficulty in perception and spatial orientation and could not sound out CVC words on the WIAT-III test, (Ex. D-21-8). The report commented on the wide gap between the Student’s conceptual (thinking) capacity^[6] and her reading skills with a 14th percentile word reading score (about a 1-year delay) and “very low” 5th percentile word reading speed score. REDACTED attributed the Student’s 21st percentile score on the WIAT-III reading comprehension subtest to the Student’s “good guessing abilities.” Ex. D-21-10. Regarding the Student’s results on the CTOPP-2, J.D. concluded that the “underlying mechanics of reading are weak despite high intelligence and remedial support. The pattern of low scores in reading decoding, oral reading fluency and reading rate indicate that [the Student] presents with dyslexia.” Ex. D-21-11. Consequently, REDACTED noted the Student’s “significant reading delay” and diagnosed her with Specific Learning Disability w/weakness in reading (dyslexia).” Ex. D-21-12.

Along with the diagnosis, Dr. REDACTED offered the recommendation that the Student “requires” an educational program using a “multi-sensory, intensive and sequential” phonetically based curriculum and that she “needs a curriculum such as Orton-Gillingham (“OG”),” which REDACTED reported was “more effective with the child struggling with sound-symbol correspondence than traditional curricula. Id. REDACTED further recommended that the Student receive accommodations in the classroom and during testing, including: preferential seating near the teacher and at the front of the room, information taught in both the auditory and visual modes, extended time testing (time-and-a-half), testing in a separate location, directions and questions read aloud and comprehension confirmed, and modified testing formats such as multiple choice and fill-in-the-blank questions. Ex. D-21-13. Among REDACTED’s additional recommendations for the Student were to reduce ambient noise, to break multi-step processes into manageable units, to continue to provide positive feedback. Id. Although her report does not point to any writing difficulty of the Student, REDACTED’s recommendations included four “useful” strategies for teaching writing to the Student, opining that “[w]riting should be taught as a process” composed of a discrete stages … [that] should include pre-writing, drafting, revising, editing.” Id.

About nine months after REDACTED’s Psychoeducational Evaluation^[7] report, the CSE held an annual review on May 21, 2019, to formulate an IEP for the Student for the 2019-2020 school year. Ex. D-1-1. The 2019-2020 IEP recommendations placed the Student in the general education environment in her home public school district for 3rd grade. Id.

The only recommended special-education program or service for the Student for the 2019-2020 school year was Resource Room (“RR”), 5:1, 40 minutes per day provided in a special location. Ex. D-1-12. The 2019-2020 IEP included numerous recommended modifications/accommodations, which largely mirror those of the 2018-2019 IEPs: clarification of directions (clarifications of written directions), pair visual and auditory supports, additional time for assignments, use of graphic organizer for writing assignments, break directions and tasks into smaller components, check for understanding, alphabet reference for student desk, preferential seating (close proximity to teacher, instruction; reduce ambient noise). Compare, Ex. D-23 at 10-11 to Ex. D-1-12. In addition, the 2019-2020 IEP recommends (Ex. D-1-12), use of a slant board in Core subject areas, (Ex. D-1-13). All of the modifications/accommodations were recommended for daily use in the classroom. Ex. D-1-12-13. The 2019-2020 IEP also recommends daily access to an iPad in the classroom (during structured reading periods and following independent reading practice and to “facilitate writing”) along with “home access to support school performance.” Ex. D-1-13. The 2019-2020 IEP also included a quarterly AT consultation as a support for school personnel on behalf of the student “to support teacher and student access to technology.” Id. In line with the 2018-2019 team, the 2019-2020 CSE team recommended the Testing Accommodations for the Student that for all tests, “test passages, questions, items and multiple-choice responses read to the student” and “separate location/setting … to accommodate tests read: when the test is not read aloud to the whole class, group of up to 5 students.” Compare Ex. D-1-14 and Ex. D-23-12.

In a departure from the 2018-2019 goals^[8], the May 2019 IEP goals focus solely on reading. Ex. D-1-11-12. The first reading goal: “When presented with unfamiliar controlled reading passage from a multi-sensory instruction program, [the Student] will accurately read aloud 87 CWPM.” Ex. D-1-11. The second goal: the Student “will be able to decode a list of 50 decodable words,” including 20 multi-syllable, 10 CVE, 10 vowel team words and 10 base words with suffixes or stable final syllable. Id. The third goal: the Student will recognize and read 94 sight words when presented with 112 3rd-grade sight words. Id. Finally, the fourth goal: the student will “encode a list of decodable words,” including 2 bonus letter, 5 VCE, 10 multi-syllable words, 1 vowel team and 2 open syllable. Ex. D-1-11-12.

While the May 2019 IEP goals expand on the Student’s reading goals from 2018, (Ex. D-6-7), and continue to specify the use of “a multi-sensory instruction program,” (Ex. D-1-11), they omit the 2018 writing goal and the math goal involving “word problems, (Ex. D-6-7-8).

Disagreeing with the District’s recommendations for their daughter’s education program, the Parents arranged for her to attend the Private School in a unilateral placement, at the beginning of the 2019-2020 school year, when the Student was entering third grade. She attended there for the four school years in question.

ISSUES

The Parents allege that the District’s programs for the Student were inappropriate and that the District did not offer a FAPE to her for the 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years^[9]. Ex. P-NN-24. They further allege that the unilateral placement at the private school was appropriate for the Student for all the school years in question and that equitable considerations supported their claims. Ex. P-NN-26-27. As relief for their claims, the Parents seek reimbursement of tuition and costs associated with the Student’s attendance at the private school for the school years in question. Ex. IHO-VI-33.

In response, the District asserts that its recommended programs in the 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years were appropriate and reasonably calculated to enable the Student to make progress appropriate in light of her circumstances and provided in the least restrictive environment. Ex. P-OO-1-3. The District further asserts that the REDACTED School, (the “Private School,”), was not an appropriate placement for the student for any and all of the school years in question and that equitable considerations do not warrant tuition reimbursement, claiming that the Parents’ actions were unreasonable, were pre-determined and demonstrated non-cooperation with the District. Ex. P-OO-9. The District thus argues that the Parents’ requests for relief should be denied in all respects. Ex. IHO-V-30.

FINDINGS OF FACT

• The disputed IEPs
• The 2019-2020 school year On June 17, 2019, the Parents wrote a letter notifying the District that they were enrolling the Student at the private school because they believed the 2019-2020 IEP created for the Student was not appropriate to meet her needs, especially in reading. Ex. D-46. The letter included notice that the Parents intended to seek tuition reimbursement from the District, along with related expenses and costs. Id.

While it is undisputed that the Student’s score on the F&P^[10] went from a “C/D level,” which she scored at the beginning her 2nd-grade year, to a J/K level in April of 2019, (Ex. D-45), the Parent made it clear at hearing that her understanding of the F&P assessments at the time she wrote the June 2019 letter acknowledging that the Student had “made a year’s worth of progress during the 2018-2019 school year” was not fully informed as to the validity of F&P’s value as a measure of progress. Compare R. at 728 with R. at 767-71.

The Student’s resource-room teacher for second grade, REDACTED, testified that her work with the Student that year included multi-sensory reading instruction and that she had received training in the Wilson reading program. R. at 297. Although she testified on direct examination that she was “certified in teaching Wilson level once certification,” and that her professional development included training in Preventing Academic Failure (“PAF”)^[11], (R. at 293-97), her testimony on cross-examination revealed the two-day Wilson course that she completed was not an actual certified credential under Wison, (R. at 351), and that at any rate, in the 2018-2019 school year when she was working with the Student REDACTED had not yet begun the level one Wilson training, (Id.).

Regardless of the amount of Wilson training that REDACTED had received when she was the Student’s resource-room teacher in second grade, the independent testing administered to the Student by REDACTED in the summer of 2018 showed a “pattern of low scores in reading decoding, oral reading fluency and reading rate,” leading REDACTED to diagnose the Student with dyslexia. Ex. D-21-11. REDACTED made it clear that the appropriate treatment of the Student’s dyslexia required an “educational program” that used a multi-sensory, intensive curriculum, (Ex. D-21-12), and the 2019-2020 IEP with its recommended general-education program with just 40 minutes per day of resource room, (Id.), simply failed to offer such curriculum to her. (See, Background Facts, above, for a full description of the 2019-2020 recommendations and goals.) While the reading goal contemplates multi-sensory instruction, nothing in the IEP suggests that the curriculum was intensive or that it contained the amount of multi-sensory instruction necessary to address the Student’s dyslexia. In light of the foregoing, I FIND that the 2019-2020 IEP fails to include the curriculum appropriate to address the Student’s reading needs.

• The 2020-2021 school year The CSE held an annual review on March 9, 2020, to formulate an IEP for the Student for the 2020-2021 school year. The 2020-2021 IEP recommendation placed the Student in the general education environment in her home public school district for 4rd grade. See, Ex. D-2-1.

The 2020-2021 IEP recommended the special-education program of Consultant Teacher, direct, for 1 ½ hours per day in English/Language Arts class along with daily Reading service in a small group for 40 minutes in a special location. Ex. D-2-8. At the CSE meeting, the Private School representative expressed concern that the Student needed a small classroom and “intensive language-based support in all subject areas.” Ex. D-2-2. It is undisputed that the IEP recommendations only provided daily support in English/Language Arts in a general education classroom. Id.

The 2020-2021IEP included numerous recommended modifications/accommodations, all seven of which also appeared in the 2019-2020 IEP: clarification of directions (clarifications of written directions), pair visual and auditory supports, additional time for assignments, use of graphic organizer for writing assignments, break directions and tasks into smaller components, check for understanding, and preferential seating. Compare, Ex. D-2-8 to Ex. D-1-12-13. The 2020-2021 IEP does not include two of the accommodations that were recommended by the 2019-2020 CSE team, specifically: alphabet reference for student desk, and use of a slant board. Id. The 2020-2021 AT recommendations for the student and for school personnel on behalf of the student mirror those of the 2019-2020 IEP. Compare, Ex. D-2-9 to Ex. D-1-13.

Director of Special Services REDACTED testified that the team discussed at the 2020-2021 IEP meeting that the consultant teacher direct service in the English/Language Arts classroom would address the Student’s writing challenges. R. at 109:5 through 110:16. She did not, however, explain how the Student’s reading or writing needs would be addressed in her other content-area classes. See, generally, the Record. Further, the IEP does not explain how the reading service would support the Student throughout the school day.

The March 2020 IEP goals remains focused on reading, adds two writing goals for the Student, and eliminates the 2019 math goal. Ex. D-2-7-8. The first reading goal in the 2020 IEP closely aligns with the second goal in the 2019 IEP, that the Student “will be able to decode a list of 50 decodable words,” including 20 multi-syllable, 10 irregular words, 10 vowel team words and 10 base words with suffixes or stable final syllable, Ex. D-2-7, changing 10 CVE words in the 2019 goal to 10 irregular words in the 2020 goal. Compare, Ex. D-1-11 to Ex. D-2-7; emphasis added. The second goal changes the targets on the list of decodable words slightly, (Ex. D-2-7), and the third goal is new, targeting an increase in the Student’s ability “to summarize what she has read by writing 4 out of 5 bullets correctly (including who, what, where, when, and why).” Id. In the first writing goal, the Student will write a 5-sentence paragraph with 3 accurate and relevant reasons that support the assigned task and the use of 2 conjunctions and 3 transition words per paragraph. Ex. D-2-7. In the second writing goal, the Student will use a graphic organizer to produce a written piece “with 3 main components of a paragraph (introduction, supporting information, and a conclusion.)” Ex. D-2-7-8. Given the lack of support for the Student’s reading and writing needs outside of English class and the Student’s recognized and continuing need for intensive reading intervention throughout the school day, I FIND that the 2020-2021 IEP falls short of effectively addressing the Student’s well-documented language-based instruction needs.

• The 2021-2022 school year The CSE held an annual review on May 26, 2021, to formulate an IEP for the Student for the 2021-2022 school year. The 2021-2022 IEP recommendation placed the Student in the general education environment in her home public school district for 5rd grade. See, Ex. D-3-1.

The 2021-2022 IEP recommended the special-education program of Consultant Teacher, direct, for 45 minutes per day in English/Language Arts class, Consultant Teacher, direct, for 45 minutes per day in Math class, Resource Room in a group of 5 for 40 minutes per day in a classroom, reading services in a small group for 40 minutes per day in a special location, and individual counseling for 30 minutes per week in the service provider’s office. Ex. D-3-1. In comparison to the 2020-2021 IEP, the May 2021 IEP represents an increase in academic programming, adding a daily direct consultant teacher in Math to address the Student’s challenges with word-based math problems, daily resource room in a group of 5 and individual counseling for 30 minutes per week. Compare, Ex. D-3-14 to Ex. D-2-8. I FIND that the increased targeted consultant teacher, resource room and counseling represent a program of instruction individually tailored to meet the Student’s unique needs.

The 2021-2022 IEP included numerous recommended modifications/accommodations, seven of which also appeared in the 2020-2021 IEP: clarification of directions (clarifications of written directions), pair visual and auditory supports, additional time for assignments, use of graphic organizer for writing assignments, break directions and tasks into smaller components, check for understanding, and preferential seating. Compare, Ex. D-3-14-15 to Ex. D-2-8. Based on input at the CSE meeting from the representative of the private school, (R. at 148-49), the 2021-2022 IEP team added the accommodations of scaffolding to support comprehension of text, and review and reinforcement, (Compare, Ex. D-3-15 to Ex. D-2-8). The 2021-2022 AT recommendations for the student and for school personnel on behalf of the student mirror^[12] those of the 2020-2021 IEP. Compare, Ex. D-3-15 to Ex. D-2-9.

The May 2021 IEP goals remain focused on reading, increase the writing goals for the Student, add a math goal for solving 2-step word problems and add a social-emotional behavioral goal for the Student.^[13] Ex. D-3-13-14. The first 2021 reading goal mirrors that of the second 2020 IEP goal. Compare, Ex. D-3-13 to Ex. D-2-7. The second 2021 reading goal mirrors that of the third 2020 goal, (compare, Ex. D-3-13 to Ex. D-2-7), and the third 2021 goal is new, targeting an increase in the Student’s reading with fluency and accuracy in her content area subjects, (Ex. D-3-13). The first 2021 writing goal is new, that the Student “will use reference materials (including the spell check feature in word-processing applications) to check and correct the spelling [of] 3 out of every 5 misspelled words.” Ex. D-3-13-14. The second 2021 writing goal upgrades the writing task to a 3-paragraph essay (in contrast to the 5-sentence paragraph in the 2020 goal) with 3 accurate and relevant reasons that support the assigned task. Ex. D-3-14. The third 2021 writing goal, mirrors that of the second 2020 writing goal, that the Student will use a graphic organizer to produce a written piece “with 3 main components of a paragraph (introduction, supporting information, and a conclusion.)” Compare, Ex. D-3-14 to Ex. D-2-7-8. Accordingly, I FIND that the writing goals in the May 2021 IEP were tailored to her individual writing needs.

In the middle of July and beginning of August 2021, REDACTED, Ph.D., administered an IEE^[14], (R. at 688), to the Student in the form of a neuropsychological evaluation, (Ex. D-45-1), and she completed her report of the testing results thereafter.^[15] The District did not receive the evaluation report until November 19, 2021. R. at 159. REDACTED’s Neuropsychological Evaluation Report notes that at the time of the examination, the Student was going into 5th grade and that she had had difficulties forming friendships at the private school in 4th grade. Ex. D-45-1. Dr. REDACTED’s report notes that behavior ratings scales completed by the Parent as part of an earlier evaluation by the District indicated that the Student was not showing “appreciable emotional stress … or behavioral problems.” Ex. D-45-7. The behavior ratings scales completed by the teacher found no display of significant emotional, behavioral or attentional challenges,” and the Student’s self-report on the BASC-3 had the same result. Id.

Dr. REDACTED’s report indicates that Student demonstrated no “appreciable visual-perceptual or fine-motor challenges” and she considered the results valid. Ex. D-45-8. The Student’s performance on the GORT-5, including average reading accuracy at the 37th percentile, showed that the Student “can adequately decode words but at a slightly slower pace compared to her peers.” Ex. D-45-10. When compared with earlier test results, according to REDACTED’s report, the Student’s scores made it clear that the Student had benefited immensely from her then-current education program and made exceptional gains in her reading^[16]. Ex. D-45-14. Dr. REDACTED’s report also showed, however, the Student’s “emerging challenges in written expression,” which prompted Dr. REDACTED to diagnose the Student with Specific Learning Disability Impairment in Written Expression. Id.

Based on the Student’s testing results and on REDACTED’s clinical opinion, REDACTED made several school-based recommendations for the Student. Regarding school placement, she wrote that the Student should be “placed in a full-time specialized education program that provides intensive reading and writing intervention … integrated throughout the curriculum and facilitated by educators … [with] specialized training in working with children with diverse learning disabilities. Ex. D-45-15. Regarding the Student’s reading proficiency, REDACTED recommended “daily explicit and systematic reading intervention provided in individual and/or small group format (with no more than three students per teacher) and which primarily emphasized phonics instruction.” Id. She emphasized the need for the Student’s curriculum “to provide frequent rote/repeated exposure to new words and regular practice reading connected text of increasing difficulty.” Id.

Regarding the Student’s writing, REDACTED reported that the Student “required daily individualized and/or small group (with no more than three students per instructor) writing intervention that emphasizes explicit instruction in writing mechanics” to improve her composition skills and self-monitoring strategies to edit and revise her work as needed.” Ex. D-45-15-16. REDACTED also recommended “frequent, direct instruction in spelling.” Ex. D-45-16.

Regarding accommodations for testing, REDACTED made the following recommendations for the Student: access to a separate testing location, extended time (2x), instructions and test items read/re-read and clarified, access to a scribe or speech-to-text technology, extra breaks to reduce fatigue, limit tests to no more than one per day. Ex. D-45-16.

On December 2, 2021, the CSE held an additional IEP meeting to discuss the results of Dr. REDACTED’s evaluation of the Student. Ex. D-4. Based on discussion of the evaluation results and of input from REDACTED at the meeting, the IEP team refined the Student’s recommended program and services for the 2021-2022 school year. Compare, Ex. D-4-17 to Ex. 3-14; R. at 171-72. The December CSE team specified that the number of students in the daily Resource Room would be limited to just 3 students and reduced the number of students in the daily reading services to just 3 students, down from 5 students. Id. Accommodations are the same as those of the May 26, 2021, IEP. Compare Ex. D-4-17-18 to Ex. D-3-14-15. The December team added access to audio books, and access to headphones as AT services for the Student, both daily at school and at home. Compare, Ex. D-4-18 to Ex. D-3-15. REDACTED also recommended that the Student’s testing accommodation of extended time be increased to double time, which the CSE adopted at the December 2, 2021 meeting. Ex. D-4-19. I FIND that the instructional program recommended in the December 2021 IEP was tailored to the Student’s individual needs and that the CSE considered REDACTED’s recommendations in formulating the more-intense reading interventions.

Most of the December 2021 IEP goals remain the same as those of the May 2021 IEP. The Reading goals and math goals are unchanged. Compare, Ex. D-3-13, to Ex. D-4-16. The Student’s writing-disability diagnosis by REDACTED was discussed at the December 2, 2021, IEP meeting. R. at 692. The first three December 2021 writing goals are unchanged from the May 2021 IEP, (Compare, Ex. D-4-16 to Ex. D-3-13-14, but the December 2021 IEP adds two writing goals in response to REDACTED’s recommendations. R. at 168-69.

The two new goals focus on the mechanics of writing, namely that the Student will use correct capitalization and correct punctuation when given a writing assignment. Ex. D-4-16. The second social-emotional goal in the December 2021 IEP mirrors that of the May 2021 IEP, (Compare Ex. D-4-17 to Ex. D-3-13-14), and the first December 2021 goal is new, again based on REDACTED’s recommendations, (R. at 168-69), namely that during counseling sessions, the Student “will identify 5 coping skills to manage anxiety at school.” Ex. D-4-16. It is undisputed that REDACTED agreed during the CSE meeting that the academic and social emotional goals, (Ex. D-4-16-17), recommended by the CSE were appropriate, (R. at 170). I FIND that the writing and social-emotional goals were tailored to the Student’s individual needs.

• The 2022-2023 school year The CSE held an annual review on May 6, 2022, to formulate an IEP for the Student for the 2022-2023 school year. The 2022-2023 IEP recommendation placed the Student in the general education environment in her home public school district for 6th grade. See, Ex. D-5-1.

The 2022-2023 IEP recommended the special-education program of Integrated Co-teaching Service, (“ICT”), for 1 hour per day in English/Language Arts class, Integrated Co-teaching Service for 1 hour per day in Math class, and Resource Room in a group of 3 for 40 minutes per day in a special location, along with reading service in a group of 3 for 40 minutes per day in a special location and individual counseling for 30 minutes per week in the service provider’s office. Ex. D-5-15. The May 2022 IEP represents a change in delivery of service from a direct consultant-teacher model to ICT, which is less restrictive, and an increase of 15 minutes of special instruction per day, per classroom, over the December 2021 IEP. Compare, Ex. D-5-15 to Ex. 4-17. I FIND that the instructional program recommended in the May 2022 IEP was tailored to the Student’s individual reading and writing needs and that the general education classroom represented the LRE for the Student.

• The Private School The Parents sent a detailed ten-day-notice letter to the District on June 17, 2019, which explained some of the reasons why the Parents had decided, after a difficult and deliberative process, to enroll the Student at the private school for the 2019-2020 school year. Ex. P-T-1; Ex. D-46. They signed the contract with the private school on February 28, 2019, but, despite the contract’s language, (see, Ex. D-84-1), the private school’s policy allowed the Student to withdraw from the contract after the July 1 deadline if the resultant vacancy could be filled by another pupil, R. at 932:11-933:2.

The Student was accepted into the private school after a detailed admissions process. R. at 668, 827-28. According to the testimony of REDACTED (“liaison”), the private school’s liaison to the CSE, the process starts with a screening to determine whether the applicant’s learning needs match the school’s mission. R. at 827-28. The mission of the private school, “with a special focus on educating students with language-based language disabilities (“LBLD”),” is to “take students who have been unsuccessful in learning to read and write in … their prior settings” and to remediate them or give them “the skills they need to be successful in a mainstream setting.” R. at 826. The liaison described the school’s admissions process by saying that “[i]t’s a pretty narrow population in terms of who is accepted and determined to be appropriate. The student must have a language-based learning disability. The student must be of average to above-average cognitive potential, and the student cannot have any significant social-emotional needs that would impact behaviors negatively.” R. 827-28. The staff of the private school takes matching an applicant student’s learning profile to a given instructional grouping so seriously that students whose profiles fit the school’s mission are denied admission if no matched group exists for a given student in a given grade level in a given year. R. at 840. As such, the private school admits less than half the applicants who seek admission into the program. R. at 841. If the applicant-grouping match does exist, the school re-assesses each enrolled student’s skills every year and reconsiders the grouping accordingly. R. at 844-45. The details of the private school’s admissions process are undisputed, and I FIND that the Parents’ depiction of the process is accurate. Further, with the Student’s diagnosis^[17] of dyslexia, (Ex. D-12-12), it is undisputed that the Student has LBLD needs. What’s more, it is undisputed that the Student’s LBLD needs matched those of an existing group in her grade level in her year of admission and throughout her attendance at the private school. See, generally, the Record.

It is undisputed that to fulfill the school’s mission, the private school uses the Orton-Gillingham (“OG”) approach to instruct students in groupings based on skill level over three language arts periods per day, one for reading skills, one for writing, and one that combines language arts skills, all of them under an OG methodology called Preventing Academic Failure (“PAF”). R. at 819-20, 832-33. The program beyond that remediation follows New York State’s public-school curriculum for core classes like science, math, and social studies, all such courses consisting of grade-level content modified for the LBLD needs of the students. R at 833. The private school’s PAF methodology is woven into the three ELA classes per day, which includes the writing class, (R. at 836-37, 838), related to but distinct from its reading piece, (R. at 838). The writing class devotes a full period daily to remediation in the mechanics and structure of written language. Id. It is undisputed that the Student has received such structure in her classes at the private school for the four years she has attended there. Exs. D-1, D-2, D-3, D-4, D-5, D-6, D-22, D-23, D-24, D-25; R. at 838-39. In light of the foregoing, I FIND that the Private School offered specially designed instruction to meet the Student’s intensive reading needs as a student with dyslexia The liaison explained that, to deliver its specialized instruction to it students with LBLDs, the private school requires all of its teachers to receive exhaustive training in PAF’s OG approach and in related scientific research. R at 829-30. No teacher at the school can start at a higher level than assistant teacher as the faculty must train for two years under a master teacher and then refresh their original training three years later and then every five years again, all while completing weekly professional development. R at 829-30.

It is undisputed that, from 3rd grade through 6th grade, the Student’s classes at the private school contained 7 to 10 students. R. at 923-24. It is also undisputed that through most of her time at the private school, the Student’s classrooms had two teachers, (R. at 927-28), and that the primary teachers in the classrooms assessed the Student’s progress, (R. at 925-26).

• 3rd grade at the private school Even during the COVID 19 pandemic, the Student showed marked progress at the Private School, improving in her reading scores on the IOWA Language Arts test from the 12th percentile to the 37th percentile for various reading skills and from the 26th percentile to the 51st specifically for reading vocabulary. Ex. P-W-1. Even before the end of her first year as a Student there, on her second-quarter progress report, her teachers gave her ratings of “frequently” in six of eight categories of decoding skills, ranking only reading fluency as “occasionally.” Ex. D-70-2. In the reading task of decoding words with two or more syllables, she had progressed from only “occasionally” decoding them in the first marking period to doing so “frequently” in the second. Id. On only one reading category, though, did REDACTED receive a “1” for consistently performing the task (decoding words with short vowels) and with that skill she had improved from “frequently” since the first-quarter progress report. Id. In light of the foregoing, I FIND that the Student demonstrated progress in 3rd grade at the private school via improved test scores and grades.
• 4th grade at the private school REDACTED repeated the success of her 3rd grade year when she rejoined the private school in 4th grade for the post-COVID 2020-2021 school year, raising her reading score on the IOWA Language Arts test from the 37th to the 96th percentile and her reading vocabulary score on the same assessment from the 51st to the 84th percentile. Ex. P-LL-1. Her year-ending, June 2021 progress report placed her at least in the “Demonstrates Progress” category and often in the “Proficient” one, and, as opposed to earlier progress reports, this one did not contain a single instance of “Additional Practice [required]” for any reported skill. Ex. P-FF-2-4. In light of the foregoing, I FIND that the Student demonstrated progress in 4th grade at the private school via improved test scores and grades.
• 5th grade at the private school Fifth Grade marked additional advancement in the Student’s skills in reading and writing at the Private School. Compare,^[18] Ex. P-FF-2 to Ex. P-MM-2. In her writing skills, she earned the “approaching proficiency” rank in all areas, (Ex. P-MM-2); in her reading skills her ability to paraphrase ideas “demonstrate[d] progress” while she earned the “approaching proficiency” rank in reading accurately in connected text, reading fluently, and summarizing information, (Id.). Although it is true, as argued by the District, (see, IHO Ex. V-26 ¶132), that the Student scored 0 percent on each of the REDACTED Coding Tests that measured her spelling of multi-syllabic words, (Ex. P-LL-1), the liaison did not agree that the scores meant that the Student did not make progress, (R. at 908), and such isolated data points ignore the detailed progress report from her teachers^[19] for the same time period, (see, Ex. P-MM-2). In Language Arts, only in her ability to paraphrase ideas in reading did she receive the “demonstrates progress” rank, (Id.), and that skill had not been measured the previous year. Compare, Ex. P-FF-2 to Ex. P-MM-2. The Student’s well-documented strength in math continued in the fifth grade, as she earned the “proficient” rank in 39 of 44 measured areas, including in solving basic and multi-step word problems. Ex. P-MM-4-5. What’s more, the Student’s academic strengths in science and art reached the “proficient” rank in all measured areas. Given the documented progress of the Student in 5th grade as demonstrated throughout the 2021-2022 Spring Progress Report from the private school, I FIND that the Student made meaningful progress at the private school in her 5th-grade year.
• 6th grade at the Private School
• According to the liaison’s testimony at hearing, the Student made good progress in her language arts class for the 2022-2023 school year. R. at 876: 9-10. Similarly, the Parent testified that, in that current school year, the Student “[was] doing great. She is an enthusiastic student, participant in class…she is very excited to be allowed to read silently for her homework.” R. at 699: 9-13. The Parent testified that she and her husband are re-enrolling the Student into the District’s schools for the 2023-24 school year because the Student “is now reading at grade level and reading independently.” R. at 678-79. Given the undisputed testimony from the liaison and the Parent regarding the Student’s progress, I FIND that she made progress at the private school in her 6th grade year.

CONCLUSIONS OF LAW

The District bore the burden of proof of both production and persuasion as to whether a FAPE was provided to the Student. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016); Application of a Student with a Disability, Appeal No. (“SRO No.”) 11-032; SRO No. 11-053; SRO No. 11-091.

To establish that it provided a FAPE to the Student, the District had to prove that it both (a) complied with the procedural requirements set forth in the IDEA and (b) developed IEPs and offered placements reasonably calculated to enable her to receive educational benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). The U.S. Supreme Court recently held that a child’s IEP must be evaluated based on the child’s ability to make appropriate progress and be appropriately ambitious in light of the child’s unique circumstances. Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1, 137 S. Ct. 988 (U.S., 2017). Although the goals may differ for students, each child should have the chance to meet challenging objectives. Id. The progress contemplated by the IEP “must be appropriate in light of the child’s circumstances,” be more than de minimus and include academic and functional progress. Endrew F., 580 U.S. __, 11 (“[w]hen all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all.”). See also, Letter to Clarke, 48 IDELR 77 (OSEP 2007)("educational performance" is not limited to "academic performance"). The Second Circuit has noted, however, that qualified students are entitled only to an "appropriate education, not one that provides everything that might be thought desirable by loving parents." Bryant v. N.Y.S. Educ. Dep't, 692 F.3d 202, 215 (2d Cir. 2012) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998)).

The IHO may find that a district failed to provide a student with a FAPE based on “substantive grounds” and/or due to “procedural inadequacies,” provided (1) the inadequacies impeded B.T.’s right to FAPE, (2) “significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of” a FAPE, or (3) “caused a deprivation of educational benefits” for A.T. 20 U.S.C. § 1415(f)(3)(E).

A child’s IEP must “ensure access” to “the general curriculum” so that students have the opportunity to “meet the educational standards within the jurisdiction... that apply to all children.” 34 C.F.R. § 300.39(b)(3); 34 C.F.R. § 300.320(a)(1)(i). A student’s IEP goals and services have to be “aligned with State academic content standards for the grade in which [a student is] enrolled.”^[20] Further, when a student’s “present levels of academic performance are significantly below grade level,” IEP goals and services should be “sufficiently ambitious to help close the gap” between the student’s skills and the standards. Id. In addition, IEPs must include research-based instructional strategies when feasible. See 34 C.F.R § 300.320(a)(4) and 8 N.Y.C.R.R. § 200.4(d)(2)(v)(b).

The IDEA underscores that a FAPE must be provided in the least restrictive environment (“LRE”). 20 U.S.C. §1412(a)(5); see also, P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir. 2008). The LRE mandate compels districts to keep children in their local schools and community and to afford them the opportunity to be educated and participate with typical peers in academic, extracurricular and non-academic activities unless it is not feasible to do so. 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. §§ 300.107, 300.117. IEPs must also contain services to enable a student “to participate in extracurricular and other nonacademic activities” and to “be educated and participate with other children with disabilities and nondisabled children in [those] activities.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.107; 71 Fed. Reg. 46,583 (2006). A district is required to “ensure” that each child participate “with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child” and have “supplementary aids and services” “appropriate and necessary for the child to participate in nonacademic settings.” See 34 C.F.R. § 300.117.

The test traditionally applied to tuition cases involving a unilateral placement is known as the Burlington/Carter “3-pronged” test. See School Comm. of Burlington v. Dep’t of Ed. of Mass., 471 U.S. 359 (1985); Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993). Under the Burlington/Carter analysis, a District may be required to pay for a unilateral placement if (a) it did not offer the child a FAPE, (b) the unilateral placement is appropriate, and (c) equitable considerations favor the Parent. Id.

An “appropriate” private placement provides “educational instruction specifically designed to meet the unique needs of the student.” Gagliardo v. Arlington Cent. Sch. Dist, 489 F.3d 105, 112 (2d. Cir. 2007). Yet, the placement “need not meet stated education standards or requirements” or the “[IDEA] definition of a free and appropriate public education,” Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cir. 2006). No one factor is deemed dispositive in determining whether a private placement is appropriate; rather, the fact finder must consider the “totality of the circumstances.” Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364); see also A.D. v. Bd. of Educ. of the City Sch. Dist., 690 F. Supp. 2d 193 (S.D.N.Y. 2010). In general, a CSE’s reliance on reports and assessments from a student’s private school weighs in favor of the school’s appropriateness. A.D., 690 F. Supp.2d at 208. The lack of any objective measures of progress is a significant factor against an award of reimbursement. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 387 (2d Cir. 2014) (citing Frank G., 459 F.3d at 364, 366 – “objective evidence” of progress is preferable under the law of this Circuit).

Further, the Second Circuit has held that, where there is an absence of evidence of the student’s progress from staff that directly provided educational and one-on-one services, and, instead only evidence of what is generally available to students attending the program, that a parent fails to demonstrate that the programs were specifically designed or that the student was appropriately placed. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 387 (2d Cir. 2014). I FIND that the District’s reliance on Hardison on this point is misplaced in that the instant matter includes ample documentary evidence, admitted into the Record as full exhibits, of the Student’s progress in the form of progress reports written by the Student’s teachers in the content areas. See, e.g., Ex. P-FF at 2, 4, 6-10; Ex. P-MM at 2-4, 6-7.

• The District failed to offer a FAPE to the Student for the 2019-2020 School Year As I have found, above, that the 2019-2020 IEP fails to include a curriculum appropriate to address the Student’s reading needs, I FURTHER FIND that said IEP was not individually tailored to her needs. Further, in evaluating the Student’s 2019-2020 IEP, I FIND that it is not “appropriate in light of the child’s circumstances” and not likely to produce academic and functional progress, in contradiction of Endrew F. (“[w]hen all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all.” Accordingly, I FIND that the District failed to offer a FAPE to the Student for the 2019-2020 school year.
• The District failed to offer a FAPE to the Student for the 2020-2021 School Year I have found, above, that given the lack of support for the Student’s reading and writing needs outside of English class and the Student’s recognized and continuing need for intensive reading intervention throughout the school day, the 2020-2021 IEP falls short of effectively addressing the Student’s well-documented language-based instruction needs. Further considering the documented progress that the Student made at the Private School in small classrooms with reading support in all content areas to address her dyslexia, I FIND that the District’s 2020-2021 IEP failed to offer a FAPE to the Student.
• The District offered a FAPE to the Student for the 2021-2022 School Year I have found, above, that the increased targeted consultant teacher, resource room and counseling comprise a program of instruction individually tailored to meet the Student’s unique needs; that the writing goals in both 2021 IEPs were tailored to her individual writing needs and that social-emotional goals in the December 2021 IEP were tailored to the Student’s individual needs; and that the December 2021 CSE considered A.D.’s recommendations in formulating the more-intense reading interventions. I FURTHER FIND that general education setting recommended in the Student’s 2021-2022 IEPs represented placement in the LRE for the Student. Although REDACTED also recommended that the Student remain in the Private School, she did not explain why that was necessary given the Student’s great strides in reading. Mindful that the IDEA guarantees an “appropriate education, not one that provides everything that might be thought desirable by loving parents,” (see, Walczak, above), I FIND, pursuant to Endrew F., that the District offered a FAPE to the Student for the 2021-2022 school year.
• The District offered a FAPE to the Student for the 2022-2023 School Year As I have found, above, that the instructional program recommended in the May 2022 IEP was tailored to the Student’s individual reading and writing needs and that the general education classroom represented the LRE for the Student, I FURTHER FIND, pursuant to Endrew F., that the District offered a FAPE to the Student for the 2022-2023 school year.
• The Private School was appropriate for the Student for the 2019-20, 2020-21, 2021-22, 2022-23 school years As I have found, above, that the Private School offered specially designed^[21] instruction to meet the Student’s intensive reading needs as student with dyslexia, and as I have found that the Student demonstrated progress in her test scores and grades throughout the school years in question, I FURTHER FIND that the Private School was appropriate for the Student for the 2019-20, 2020-21, 2021-22 and 2022-23 school years.
• No equitable considerations bar an award of tuition for the 2019-20 and 2020-2021 school years It is undisputed that the Parents participated in the CSE process every year during the four-year period their child attended the private school and that the Parents never did anything to make the CSE process difficult for the District. R. at 196-97. The Parents also consented to a re-evaluation of the Student in October 2020. R. at 124-25; Ex. D-27. Although the Parents gave consent to the District to perform a classroom observation of the Student at the private school, the District could not perform the classroom observation portion of the re-evaluation in 2020 because the Private School did not allow it at the time. R. at 125-26. Upon cross-examination, the District’s witness explained that the private school was following Covid protocols in refusing to allow the observation, (R. at 197-98), and admitted that the District was also “very careful” about visitors to its school at that time, (R. at 198).

It is also undisputed that the Parents signed the Student’s 2019-2020 tuition contract with the Private School in February 2019, before the CSE convened for its annual review in May 2019. Compare, Ex. D-1 with Ex. D-84-2. The District argues that the timing of the signing of the contract is evidence the Parents had no intention of considering the District’s program “given … they voiced no concerns at the May 2019 CSE meeting and indicated they were in agreement with the recommendations.” See, IHO Ex. V-29 ¶ 140. The District offers no support of its suggestion that signing a contract for a Private School before a CSE meeting occurs constitutes predetermination per se. The District’s suggestion that parental “agreement” with the recommendations at a CSE meeting precluded their later rejection of the recommendations, especially given their timely filing of a 10-day notice^[22] (“Notice”) of withdrawal pursuant to 20 U.S.C. § 1412(a)(10)(C)(iii)(1)(bb), lacks merit and is unsupported by any legal argument. The Notice underscored the Parents’ concerns that the program described in the May 2019 IEP was “substantially similar” to the Student’s November 2018 IEP and that the 2019 program would not allow their daughter to make meaningful progress for the 2019-2020 school year. Ex. D-46-1. The Notice further explained that the Student “continue[d] to lag significantly behind her peers and behind grade level” and that her “writing mechanisms remain weak.” Id. What’s more, the Notice advised the District that the Parents planned “to seek reimbursement of the tuition and all related expenses” of the unilateral placement in light of what it called the District’s failure to offer their child a FAPE. Id. In light of the above, I FIND that the Parents fully cooperated with the District, that they did nothing to prevent the District from offering a FAPE and that no equitable barrier to tuition reimbursement exists here.

ORDERS

Based upon the above Findings of Fact and Conclusions of Law, I HEREBY ORDER THAT:

• The District shall reimburse the Parents for the Student’s tuition and costs paid to the REDACTED School for the 2019-2020 school year. Within 30 days of this Order, the Parents shall submit to the District proof of payment of tuition and costs associated with the Student’s attendance at the Private School for the 2019-2020 school year. Within 30 days of receipt of the Parents’ proof of payment, the District shall issue reimbursement to the Parents as directed; and that
• The District shall reimburse the Parents for the Student’s tuition and costs paid to the REDACTED School for the 2020-2021 school year. Within 30 days of this Order, the Parents shall submit to the District proof of payment of tuition and costs associated with the Student’s attendance at the Private School for the 2020-2021 year. Within 30 days of receipt of Parents’ proof of payment, the District shall issue reimbursement to the Parents as directed.

As I have found, above, that the District provided a FAPE to the Student for the 2021-2022 and 2022-2023 school years, I HEREBY DENY the Parents’ remaining requests for relief.

SO ORDERED.

DATED: August 31, 2023

Jean M. Lucasey

Jean M. Lucasey, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

An appealing 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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

Withdrawn

Enter date of exhibit. Press tab key.

Withdrawn

Withdrawn]

Documentation of the Determination of Eligibility

June 2018

REDACTED RTI reading progress Report

6.21.18

Withdrawn

REDACTED 's Response to the 18-19 IEP

8.16.18

Withdrawn

PTC form and letter

Nov. 2018

Withdrawn

REDACTED Correspondence with REDACTED

11.8.18

Admissions-intake REDACTED reading assessment

11.28.18

Teacher-Provided Notes for Meeting

1.25.19

PWN

4.25.19

ESY Notification and Consent

6.4.19

Second Grade report card

June 2019

Withdrawn

6.17.19

Withdrawn

2018-2019

IEP GOALS Progress Report

6.26.19

REDACTED-administered Iowa Test results for REDACTED

9.5.19

PWN

3.9.20

REDACTED Progress Report 3rd Grade

June 2020

Withdrawn

REDACTED in-district Ed Eval 5.5.21

5.5.21

Withdrawn

REDACTED REDACTED Report Card Grade 4

June 2021

Withdrawn

REDACTED Post-Testing Score Report

May 2022

REDACTED Progress Report Spring 2022

Undated

AMENDED Request for a Due Process Hearing

8.21.22

District Response to Amended Due Process Complaint

8.31.22

GORT-5 Examiner Record Booklet

8.6.21

DISTRICT EXHIBITS

Exhibit

Document

Date

Pages

IEP

5/21/19

IEP

3/9/20

IEP

5/26/21

IEP

12/2/21

IEP

5/6/22

IEP

6/13/18

Consent for Initial Evaluation

3/15/18

Parent Invitation Response Form, signed

6/22/18

Physical Examination

11/20/17

Progress Report

5/9/18

11.

Social History

3/5/18

12.

Classroom Observation

4/23/18

13.

Educational Evaluation

4/23/18

14.

Reading Evaluation

5/10/18

15.

Interim Report Card

6/5/18

16.

Consent form for Re- Evaluation

6/22/18

17.

PWN

6/13/18

18.

Teacher Report

5/11/18

19.

Psychological Evaluation

5/9/18

20.

Occupational Therapy Evaluation

7/11/18

21.

Psychoeducational Evaluation by REDACTED

9/13/18

22.

IEP

9/20/18

23.

IEP

11/19/18

24.

IEP

2/21/19

25.

IEP

6/25/19

26.

PWN Proposed Re-Evaluation

9/10/20

27.

Consent form for Re- Evaluation

10/16/20

28.

Social History

10/16/20

29.

Psychological Re-Evaluation

10/26/20

30.

Educational Re-Evaluation

11/16/20

31.

Physical

12/29/20

32.

Psychological Re-Evaluation Addendum

5/5/20

33.

Private School Standardized Test Report

5/13/21

34.

Private School Progress Report

April 2018

35.

Speech-Language Evaluation

5/18/21

36.

Occupational Therapy Re-Evaluation

5/19/21

37.

Request for IEE

3/31/21

38.

Emails from Parent to REDACTED

4/7/21

39.

Consent for Evaluations

4/6/21

40.

Request for IEE

5/25/21

41.

Email from Parent to REDACTED

6/1/21

42.

Request for IEE

6/1/21

43.

Email approving IEE

6/18/21

44.

Email from REDACTED

11/19/21

45.

Private Neuropsychological Evaluation

8/6/21

46.

Letter from Parents Notice of Unilateral Placement

6/17/19

47.

Letter from REDACTED

7/9/19

48.

Letter from REDACTED to Parents re Unilateral Placement

2/20/20

49.

Letter from REDACTED

5/15/20

50.

Letter from Parents Notice of Unilateral Placement

8/18/21

51.

Letter from REDACTED

8/27/21

52.

Letter from Parents Notice of Unilateral Placement

8/21/22

53.

Meeting Minutes

10/23/18

54.

Meeting Minutes

12/21/18

55.

Meeting Minutes

1/25/19

56.

Meeting Minutes

4/29/19

57.

Annual Review Preparation Document

5/21/19

58.

Reading Component Chart

Undated

59.

Progress Report for IEP Goals from 2018-2019 School Year

Undated

60.

Progress Report for IEP Goals from 2018-2019 School Year

Undated

61.

Progress Report for IEP Goals from 2018-2019 School Year

Undated

62.

Progress Report Grade 2 Term 3 2018-2019 School Year

Undated

63.

I-Ready Reading Test Score Grade 2

5/14/19

64.

I-Ready Reading Test Score Grade 2

1/24/19

65.

I-Ready Reading Test Score Grade 2

4/29/19

66.

WIST Assessment

9/20/18

67.

WIST Assessment

4/22/19

68.

WIST Report

Undated

69.

Word Identification and Spelling Test Result

7/28/21

70.

Private School Progress Report

3/2/20

71.

Private School Coding Test

7/19/21

72.

Private School Test Grid

7/19/21

73.

Private School Test Grid

Undated

74.

Private School Progress Report

2021-2022

75.

Private School Report Card Q3

2021-2022

76.

Letter from REDACTED to Parents

Nov. 2019

77.

Letter from Parents to REDACTED re Intent to Enroll

2/27/20

78.

Letter from Parents to REDACTED re Disagreement with IEP

5/14/20

79.

Educational Re-Evaluation Addendum by REDACTED

5/5/21

80.

Progress Report for 2018-2019, Grade 2

Undated

81.

REDACTED Certificate

9/26/18

82.

Private School Admission Application Form

7/25/18

83.

Private School Additional Educational Screening

11/28/18

84.

Private School Enrollment Contract 2019-2020

2/28/19 and 3/4/19

85.

Private School Yellow Form

9/17/19

86.

Private School Yellow Form

11/12/19

87.

Private School Yellow Form

9/13/20

88.

Private School Yellow Form

10/2/20

89.

Emails from REDACTED to the Parent

10/12/20

90.

Withdrawn

91.

TOWL-4 Record Story Scoring Form

8/6/21

92.

TOWL-4 Story

Undated

IHO EXHIBITS

Exhibit

Document

Date

Pages

PHC/status summary records and timeline extensions by IHO Alana Flame

3/16/21 through 5/23/22

PHC Summary and Scheduling Order

8/12/22

Orders Granting Extension

11/2/22 through 8/1/23

Subpoenas with parties’ letters to IHO re same

1/12/23 through 1/19/23

District’s Post-Hearing Brief

6/9/23

Petitioners’ Closing Brief

6/9/23

Due Process Complaint

2/3/21

Amended Due Process Complaint

3/7/22

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number or exhibit letter and by page numbers as needed and appropriate.

[3] The Parents withdrew several of their disclosed documents that were duplicates of District exhibits entered into the Record.

[4] A more detailed list of the admitted exhibits is attached to this decision as Appendix B, “Documentation Entered into the Record.”

[5] The IEP and services for the Student for the 2018-2019 school year are not in dispute in this hearing.

[6] The Student “scored very superior on Narrative Memory … in which she was read a short story and asked to re-cap it. …[She] not only relayed the main idea but every important detail and in the correct sequence.” Ex. D-21-7. The narrative memory test “is a task of auditory attention, auditory comprehension, auditory memory and the ability to retell a story in logical sequence. [The Student] excelled, scoring at the 95th percentile.” Id.

[7] The 2018-2019 CSE reconvened on September 20, 2018, to review results of REDACTED’s Psychoeducational Evaluation IEE. The resulting IEP recommended the same programs, added accommodations and included assistive technology for the first time. Ex. D-22 at 10-11. The third 2018-2019 IEP, dated November 19, 2018, includes “multi-sensory instructional program” language in a reading goal; the program recommendations are unchanged from the previous two 2018-2019 IEPs. Compare, Ex. D-6-8, Ex. D-22-10, and Ex. D-23 at 10-11. Although none of the 2018-2019 IEPs are at issue in the instant case, I include them for completeness of the Record and to demonstrate the progression of the IEP recommendations throughout the Student’s special-education history.

[8] This case does not challenge criteria for the measurement of any goals or how progress will be measured, so I do not address those questions.

[9] The Parents also asserted a Child Find claim in their Closing Brief among other claims asserting procedural errors on the part of the District. IHO Ex. VI-27. As I have found, below, that the District failed to provide a FAPE on substantive grounds for the 2019-2020 and 2020-2021 school years, I do not address the Parents’ procedural claims for those years. For procedural claims relating to the 2021-2022 and 2022-2023 school years, (IHO Exs. VI-26, VI-28) I FIND them to be without merit.

[10] The Record does not spell out the assessment tool referred to in the Record as “F & P.” R. at 767-771. A visit to the Fountas & Pinnell website on July 31, 2023, revealed that F&P is a shortened reference used by the company and that F&P is a system for literacy instruction that includes assessments and other tools. See https://www.fountasandpinnell.com/.

[11] REDACTED cited Wilson and PAF as examples of evidence-based multisensory instructional programs. R. at 293.

[12] The recommendation for the AT device has no instructions for service delivery and a simpler description of the location of the device, stating “school and home” instead of “classroom; home access to support school performance.” Compare, Ex. D-3-15 to Ex. D-2-9.

[13] The Social/Emotional/Behavioral goal contemplates that the Student “will foster and maintain 2 positive relationships with adults at school.”

[14] Through their original DPC, Parents had sought an independent educational evaluation. The District agreed to fund such IEE; REDACTED’s report is that IEE.

[15] The report itself does not record the date of its completion. See, generally, Ex. D-45.

[16] For example, a comparison of the Student’s GORT scores in REDACTED’s 2021 report with an earlier administration by the District in 2018 indicates that the while the Student has been attending the private school her reading accuracy has improved from the 16th percentile to the 37th percentile. Compare, Ex. D-45-20 to D-14-1.

[17] The Student’s dyslexia diagnosis features deficits in reading decoding, reading accuracy, reading rate and fluency. Ex. D-21-12.

[18] Even though the “performance indicators” for the 2021-2022 school year expanded to include a fourth level of progress, adding “approaching proficiency” for a complete range of indicators from “additional practice needed,” “demonstrates progress,” “approaching proficiency,” to “proficient,” the comparison of the Student’s skills from one school year to the next is clear. Compare, Ex. P-FF to Ex. P-MM.

[19] The 2021-2022 Spring Progress Report comprises ratings and comments from the Student’s teachers: Ms. REDACTED for Language Arts (reading and writing), (Ex. P-MM-2), Ms. REDACTED for Social Studies, (Ex. P-MM-3), REDACTED for Math, (Ex. P-MM-4-5), REDACTED for Science, (Ex. P-MM-6), and REDACTED for Physical Education, (Ex. P-MM-7).

[20] https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/guidance-on-fape-11-17-2015.pdf.

[21] The District’s reliance on [REDACTED] to suggest that the Private School’s specially designed instruction for LBLD Students was not tailored to the Student’s needs, (See, IHO Ex. V-26-27), is inapposite. The student in [REDACTED] had therapeutic needs, and the SRO found that the parents did not demonstrate that those needs were being addressed by the school. The record in [REDACTED] contained testimony from school staff that suggested the school was providing no therapeutic intervention whatsoever, and the Second Circuit reversed the District Court, affirming the SRO’s decision that denied tuition reimbursement. Here, the Record brims with testimonial and documentary evidence demonstrating areas of the Private School’s instructional focus on reading for the Student, who has dyslexia and is classified with a learning disability. See, generally, the Record.

[22] See, Ex. D-46, dated June 17, 2019, and received by the District on the same date.

Impartial Hearing Decision

JURISDICTION

ISSUES

FINDINGS OF FACT

CONCLUSIONS OF LAW