NY IHO #552769: Impartial Hearing...

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NEW YORK STATE DEPARTMENT OF EDUCATION

In the Matter of REDACTED and REDACTED, on behalf of the minor child, REDACTED,

-against-

SED Case #: 552769

REDACTED School District,

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

FINDINGS OF FACT AND DECISION

Actual Record Close Date: April 10, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING

7/26/21 hearing date:

For the Student:

REDACTED, Parent (via phone)

For the District:

REDACTED, Esq. (via phone)

9/15/21 hearing date:

For the Student:

REDACTED, Parent (via phone)

For the District:

REDACTED, Esq. (via phone)

11/3/21 hearing date:

For the Student:

REDACTED, Parent (via phone)

For the District:

REDACTED, Esq. (via phone)

3/2/22 hearing date:

For the Student:

REDACTED, Parent (via phone)

For the District:

REDACTED, Esq. (via phone)

3/7/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

REDACTED, Special Education Teacher

REDACTED, School Psychologist

3/24/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

REDACTED, School Psychologist

5/2/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

REDACTED, Speech and Language Pathologist

5/23/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

REDACTED, Clinical Psychologist

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

8/10/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

9/19/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

12/9/22 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

1/18/23 hearing date via Google Meet:

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, Director, Pupil Personnel Services and Special Education

INTRODUCTION

On 6/18/21, I was appointed as the Impartial Hearing Officer (“IHO”) by the REDACTED School District (“the District”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f)(1) and §504 of the Rehabilitation Act concerning a dispute involving the special education program for REDACTED. (REDACTED or “the student”).

BACKGROUND

At the time of the hearing REDACTED had graduated high school on 6/19/21 and was a student at REDACTED. She is classified as Other Health Impairment (“OHI”), a classification that is not in dispute. At the age of three, REDACTED was hospitalized for a week with REDACTED and loss of oxygen to the brain, she was comatose for one day. At that time, she was diagnosed with REDACTED, a REDACTED condition. The Parent noted changes in language and social skills following the hospitalization and diagnosis, in addition her pre-school teachers noted that she had trouble processing information and following directions. She has a history of language based learning difficulties and attentional issues which impact her both socially and academically. REDACTED attended pre-school from ages 3 to 5. REDACTED then attended REDACTED School, a private school which is located within the REDACTED School District. REDACTED was classified as OHI at the age of 6, due to her diagnosis of REDACTED, and had an Individual Education Service Plan (“IESP”). At the age of 6, she was diagnosed with REDACTED (“REDACTED”), medication was not advised due to her REDACTED. She has had private tutoring since the REDACTED grade, as well as private speech language therapy (“SLT”) at REDACTED and worked with a psychotherapist for emotional support and social skills. REDACTED received resource room, indirect consultant teacher services and SLT in school pursuant to her IESP. In the REDACTED grade, the District contracted with a private speech provider, REDACTED, for REDACTED’s SLT services. REDACTED moved with her family to REDACTED New York, in the REDACTED grade and where she attended both REDACTED and then REDACTED.^[1] Upon entering public school, REDACTED had an Individual Education Plan (“IEP”). When REDACTED transitioned from the middle school to high school, she had to be escorted to classes due to overwhelming anxiety.^[2] (t. 467, 864-67, Ex. 5, 6, 11)

A due process complaint (“dpc”) was filed by the Parent, on 6/18/21, in which it is alleged that the District failed to provide a free and appropriate public education (“FAPE”) to REDACTED for the 2019-2020 and the 2020-2021 school years including but not limited to the failure to provide appropriate transition services, failure to implement SLT services, failure to provide SLT goals and provide an independent education evaluation as requested. The District filed a dpc on 7/1/21, alleging that the District had fully and properly evaluated the student in all suspected areas of disability. These due process complaints were consolidated with an Order of Consolidation dated 8/23/21. (Ex. VI)

The District made a Motion to Dismiss claims set forth in the Parents dpc concerning the 2019-2020 school year and the allegation that the District failed to conduct a transition assessment during the 2020-2021 school year. An Order on Motion to Dismiss was issued on 12/1/21, dismissing any and all claims relating to the 2019-2020 school year. However, a Motion to Dismiss regarding transition assessments for the 2020-2021 school year was denied.^[3] (Ex. XI).

The District made a motion to enter video evidence into the record. This evidence consisted of video/audio recordings of the 6/22/20 and 2/23/21 CSE meetings. The Parent opposed that motion. An Order on Motion to Enter Video Evidence was issued granting the Districts motion. (Ex. XIV)

The District contends that REDACTED was provided with FAPE for the 2020-2021 school year and that the District had fully and properly evaluated the student in all suspected areas of disability.

FINDINGS OF FACT

REDACTED, Director of Pupil Personnel Services, testified that she started with the District in July 2019. On 6/24/19, prior to her beginning with the District, a prior written notice (PWN) was sent to the Parents seeking consent to perform a speech and language evaluation of REDACTED, as requested by her teacher and/or educational team. Information gleaned from this evaluation will “assist the Committee in determining if speech or language issues impact school functioning and need to be addressed through therapy.” After REDACTED began working for the District, it was discovered that they had not received a consent for the evaluation and so a second request was sent to the Parents dated 7/16/19. The District also sent a PWN to do the triennial evaluations in the areas of psychological evaluation, social history, classroom observation, educational evaluation, physical evaluation, speech/language evaluation and occupational therapy evaluation. The first request was sent 10/8/19, the second request 11/15/19 and a third request was sent on 1/23/20. The timing of the triennial evaluations is based on three years from the date of the last evaluation that District staff has conducted and typically it is the psychological examination. In some cases, if a private evaluation has been done, it may affect the timing of triennial evaluations. REDACTED testified that the District may agree to use a private evaluation as the re-evaluation date but it depends on the child, their needs and the situation. REDACTED did not recall receiving consent for the evaluations, though she did receive an email from the Parent consenting to an educational evaluation. At the start of the 2020-2021 school year the District was still trying to obtain consent to conduct the evaluations. REDACTED testified that typically after a third request, with no response, the District can do the evaluations without consent. She noted that while in the process of attempting to gain consent for the evaluations the COVID pandemic struck, the lockdown occurred, the schools were closed for in person instruction, so things were delayed. The Parent testified that she never received the requests for consent to evaluate.^[4] In addition, the Parents and the District were in the midst of an impartial hearing, and she did not want to muddy the waters or cause undue stress by proceeding with evaluations without consent. Also, she did not know if something would come out of the hearing. Ultimately, the SRO, in Appeal 20-172, ordered the District to fund an independent neuropsychological evaluation. (t. 414-20, 887, 949, Ex. 27, 28, 33, G, VII)

The Committee on Special Education (“CSE”) met on 6/22/20 for the annual review to develop a program for REDACTED’s REDACTED year, REDACTED grade. The meeting was attended by REDACTED, chairperson, REDACTED, school psychologist, REDACTED, special education teacher, REDACTED, general education teacher, REDACTED guidance counselor, the Parents REDACTED, REDACTED and REDACTED, Principal.^[5] The CSE recommended Educational Support Class (“ESC”)^[6] 15:1 6x 8 day cycle 55 minutes, Counseling: Small Group (3:1) 1x weekly 30 minutes, Counseling: Individual 1x weekly 30 minutes, Speech/Language Therapy: Individual 1x weekly 30 minutes, Speech/Language Therapy: Small Group 1x weekly 30 minutes. REDACTED testified that in an effort to work with the Parents and student they discussed SLT as it was an area of concern for them. SLT was added back to the IEP at the request of the Parent and student and would be available if the student chose to access the service. The Parent testified that she did not ask for SLT services but when offered she agreed to the services.^[7] REDACTED stated that she had someone that she worked with privately and wanted to use that person for the school services. REDACTED reminded the Parent and student several times that SLT must be provided during the school day. There was discussion about the type of speech therapist the Parent and REDACTED required, as neither one or both did not want to work with the SLT provider that worked in the high school. REDACTED and the Parent had input into the SLT level of service and goals. Due to a clerical error, the SLT goals were not on the final draft of the IEP, though the comments reflect that they discussed it and the SLT services were on the IEP. The Parent was concerned about the size of the ESC class. REDACTED, REDACTED’s general education history teacher, stated that she needs support in writing. REDACTED spoke about her REDACTED grade math class and how it was a bit difficult. REDACTED, the principal reminded REDACTED that she had requested to jump levels in math the prior year because she wanted to challenge herself, that the math class had difficult concepts, but that REDACTED was doing well. Goals were discussed at the meeting and included a reading goal, writing goals, social/emotional/behavioral goals, SLT goals and career/vocational/transitional goals. There were also discussions about postsecondary goals which REDACTED described as student led and focused which address long-term goals for living, working, and learning as an adult. Modifications and Accommodations were reviewed. Math was not discussed as a specific need. There was a discussion about the math class REDACTED would be taking in the REDACTED grade, contemporary math, which focused on “real life” math. REDACTED actively participated in the meeting and gave updates on how she thought her REDACTED grade school year had gone and how she was doing. The Parent testified that REDACTED prepared for the CSE meeting by spending hours rehearsing, writing notes, telling the Parent what she wanted and that she was going to advocate for herself. The Parent stated that she was proud of her, she was prepared and knew what to say. However, the Parent described REDACTED as “…not a child that can produce spontaneous language that sometimes makes any cohesive sense.” REDACTED wanted to add additional goals which were discussed and added. It was noted as a student strength in the IEP that REDACTED was an active participant in many school clubs and activities (REDACTED, REDACTED, and REDACTED), and played on the tennis and golf teams at REDACTED and is the manager of the REDACTED Girls Varsity Basketball team for the second year in a row.^[8] REDACTED spoke at the meeting about how well REDACTED did in the REDACTED grade, particularly during the lockdown when the school closed and they went to remote learning. She testified that REDACTED worked very hard and was “tremendously successful” especially in her honors English class and that her English teacher was astonished at how connected REDACTED was throughout the lockdown period. REDACTED testified that overall, the REDACTED grade was a good year for REDACTED academically. Socially, she noted that REDACTED was actively involved in multiple organizations, had more than one friend from classes to go over work with and though she still felt anxious reaching out to people she was comfortable reaching out to close peers. Counseling was discussed and REDACTED stated that she hadn’t worked consistently that year with REDACTED because she was not accessing the counseling services. REDACTED testified that REDACTED stated that she wanted to work on how to apply her social skills in real time and that she had social anxiety that she needed to work on. The social/emotional goals were appropriate and developed to help REDACTED to work on those issues. REDACTED had some friends, and her teachers reported some success socially and the goals were designed to help her cope in social situations and recognize her successes. REDACTED testified that anxiety could have a direct impact on pragmatic language, whether or not the person has a speech/language impairment. If you are nervous or anxious in a social situation, you can’t think of what to say or get your words out correctly. REDACTED stated that one of her transition goals, #7 addressed REDACTED’s anxiety and self-esteem by self-advocating and seeking help from her guidance counselor or special education teacher when she needs help with direction and needs support. Also, REDACTED’s modifications and accommodations on the IEP help address deficits in anxiety and self-esteem. REDACTED testified that the IEP was appropriate and took into consideration the concerns of the Parents, student, teachers and the CSE committee to REDACTED’s needs for the 2020-2021 school year. REDACTED testified that she believed that the goals were appropriate, developed with the input of the student, Parent and teachers and would help her further her education and long-term goals. (t. 76-79, 299-309, 421-30, 432-35, 509, 880, 878, 928-29, Ex. 7, 23)

REDACTED testified that she first met REDACTED in the REDACTED grade, when she was in both her integrated co-taught (“ICT”) English class and resource room.^[9] She then taught REDACTED in the REDACTED and REDACTED grade in the ESC class. REDACTED was REDACTED’s case manager for the REDACTED and REDACTED grade and part of her duties as case manager were to ensure that her IEP was implemented. During the 2020-2021 school year, REDACTED grade high school, was scheduled on an 8 day cycle and had a hybrid schedule (remote and in person learning). Students had the opportunity to access a hybrid schedule which worked out to 2 days live and 3 days remote learning. REDACTED testified that most students, especially REDACTEDs, spent the school year learning remotely. REDACTED would come to school in person at times but spent the bulk of her time attending remotely. REDACTED saw REDACTED 6 days out of an 8 day cycle in the ESC class. This class consisted of 9 REDACTEDs for half the year, then increased to 10 when a REDACTED grade student was added later in the year due to scheduling. The class in the REDACTED grade focused on connecting the skills that the students had learned, to what they would be doing in the future. Mini lessons would be done on reviewing skills for breaking down assignments so the student can manage it over the week. REDACTED would connect with each student daily, the students would connect with each other on some assignments, and whether in person or online they would break down into smaller groups to work on assignments. REDACTED would help the students with their college applications but stated that REDACTED chose to work on her academic work rather than college applications in class (REDACTED had received an early decision for college, in December). REDACTED testified that an integral part of ESC is to do informal vocational assessments and questionnaires, which she did with REDACTED. It was also noted that REDACTED took a class called Managing Your Future in her REDACTED year and that the school is constantly working on providing support for transition. REDACTED also worked with the students on executive functioning and ways of avoiding procrastination. She also monitored REDACTED’s reading, writing and vocational goals. REDACTED testified that REDACTED’s goals were appropriate, that she achieved them and improved in those areas. REDACTED had deficits in areas such as, jumping into an assignment without really reading it, but by breaking the assignment down and reading it to herself, it became a habit and really helped her. The same was true for writing assignments and vocational goals. The goals were targeted to REDACTED’s needs and REDACTED did not believe that there was any need to change or modify the goals during the school year. REDACTED regularly spoke to REDACTED’s other teachers. REDACTED’s core classes were all general education classes, and her teachers reported to her that REDACTED was doing well and did not express concern that she required a different setting, such as an ICT class^[10]. In March, REDACTED expressed to REDACTED that she was very distracted and lacking in motivation. REDACTED stated that this level of distraction was common among REDACTEDs. REDACTED never stated that she was having any difficulties in math or expressed a need for support though REDACTED testified that REDACTED would occasionally work in the tutoring center on her math project. REDACTED’s math class REDACTED year was a class which had students apply math skills to real life issues such as making car payments or budgeting which met her needs. REDACTED did well in this math class as she had done in previous math classes. REDACTED stated that she did not believe that math goals were necessary nor did REDACTED require a special class in math or in any core subject. In school, REDACTED described REDACTED’s behavior as excellent and that she felt that the IEP was appropriate and offered REDACTED the opportunity to make meaningful progress. REDACTED testified that REDACTED did well in her REDACTED year and developed an ability to work more independently, advocate for herself and seek help when needed; REDACTED knew what she needed to do and was able to lay it out. “But she sometimes needed to talk it through. But she had a clarity that she did not have at the beginning of REDACTED year about her abilities and had a confidence about her abilities and what she was able to do in the fall.” REDACTED spoke to REDACTED about her struggles with procrastination and lack of motivation in the Spring and they worked out a plan. REDACTED testified that she saw procrastination and lack of motivation as very age appropriate at that point in REDACTED year. REDACTED testified that REDACTED achieved all her goals on her IEP, did very well in her classes and was prepared for college at the end of her REDACTED year. While REDACTED struggled with anxiety she progressed socially, especially in the REDACTED grade, by forming some friendships and participating in multiple school organizations. (t. 74-75, 80-86, 88-98, 102-04, 132-36, 142, 144, 149, 163-64, 175-78, 187, 189, 202-203, 213-14, 226, 434, Ex. 7, 9)

SLT services were recommended for REDACTED for the 2020-2021 school year. REDACTED did not access the SLT services because the Parent had concerns about the SLT provider in the high school, REDACTED. REDACTED testified that she had mentioned to the Parent that they had a new SLT provider starting in the District, who was not slated to work in the high school but there was a possibility that person could provide services to REDACTED. The Parent chose to wait for the new SLT provider rather than have REDACTED access SLT with REDACTED.^[11] The Parent had requested that she be provided with the credentials for the new SLT provider and was advised that the SLT providers that work in the District are properly certified or else they would not be able to work in the District. The Parent responded, via email, that the “person must have experience and training in social pragmatic language to meet REDACTED’s unique needs”. REDACTED advised the Parent, in or around October, that due to scheduling, the new SLT provider would not be able to provide services to REDACTED. REDACTED advised the Parent that the high school SLT provider, REDACTED, was available to provide services to REDACTED and that there was an appropriate group for REDACTED to participate in. The Parent and REDACTED again chose not to access SLT services to be provided by REDACTED. A few months later the Parent again asked for a different SLT provider. REDACTED testified that she looked at the middle school SLT provider, REDACTED, to see if her schedule would allow her to work with REDACTED. However, the dates and times offered conflicted with REDACTED’s class schedule and the Parent did not want her pulled out of classes, in addition REDACTED was on notice from the high school that she could not have any more absences from her classes. The Parent stated it could impact her ability to graduate. REDACTED testified that it turned out to be unworkable in trying to fit REDACTED’s schedule with REDACTED’s availability. REDACTED testified that the schedules are vastly different between the high school, middle school, and elementary school, so it is very difficult to line up SLT providers schedules from one school for a student in another school, such as from the middle school to the high school. Ultimately, in May the issue of SLT came up again. At that time REDACTEDs were going to internships, and were not attending formal classes, so REDACTED was able shift the schedule of one of the elementary SLT providers, REDACTED so she could provide REDACTED with SLT services. REDACTED had not accessed the services all year, so they were at a higher frequency, and the Parent agreed to the service provider. REDACTED testified that she began working with REDACTED in mid-May and was to provide the services four times within a six-day cycle for the remainder of the school year. She was to target social pragmatic needs and if possible incorporate Social Thinking curriculum into the therapy. Prior to working with REDACTED she did a case review. REDACTED testified that SLT reevaluation of REDACTED by REDACTED in late 2016 found that REDACTED had the foundational receptive, expressive, and pragmatic language abilities that she requires but noted that some of her responses indicated anxiety. REDACTED stated that anxiety can impact a student’s ability to access their skills and demonstrate them. In a review of a private Neuropsychological Evaluation by REDACTED, PH.D. in November 2017 REDACTED testified regarding the evaluator’s conclusions of REDACTED’s language skills. REDACTED stated that the evaluator concluded that REDACTED’s conversational language skills were age appropriate, that she comprehended and produced spontaneous speech but that on assessment tasks in the area of language she was in the borderline range. The borderline range was on her ability to comprehend instruction which would impact her in the classroom, but this could be addressed through accommodations and modifications on the IEP. REDACTED also noted that if REDACTED did experience social anxiety or had difficulty with attention that could impact her score on subtests. Upon viewing a clip of REDACTED answering a question at the 6/2/20 CSE meeting, REDACTED gave her impression of her language abilities. “So just generally, her language abilities appear age appropriate. They appear strong. She’s comprehending questions and providing verbal reasoning appropriately….and then she used appropriate syntax. And from her supralinguistic skills, she demonstrated metacognition, thinking about her thinking. She was able to infer and making a smart guess about how she thinks she might perform in college. She was able to demonstrate perspective taking skills. She said that from the outside it looks like she’s doing well and she’s feeling happy, which means she’s able to give the perspective of the listener, to interpret facial expression and body cues. She didn’t appear to have word finding difficulties. She self-advocated which is a strong skill to have going into college. And overall, she demonstrated, it appeared, appropriate pragmatic language and social skills.” REDACTED testified that she was targeting REDACTED’s IEP goals, using real world hypothetical scenarios to target her metalinguistic skills, ability to make inferences, problem solve, take the perspective of others, and also incorporated the Social Thinking curriculum in the sessions. Also targeted were language processing skills, and the ability to make semantic associations. REDACTED did great in the sessions and required very little support to answer hypothetical problem solving scenarios. Based on the results of the REDACTED evaluation and Parent reports, REDACTED believed that the goals were appropriate and that she mastered the goals. The SLT was approximately 11 sessions which were virtual with the student at home and REDACTED in her therapy room. In the first session she discussed the IEP goals and asked REDACTED what she felt was her biggest area of need. REDACTED told her that she believed that she possessed pragmatic language skills, but that social anxiety affected her ability to access those skills. REDACTED told her that it was hard to make small talk and say ‘hi’ to people, even those she felt comfortable with. During SLT they did activities surrounding dealing with rejection, reading the room, and using cognitive flexibility to think of reasons why a person might not want to talk to you and how they might be feeling. REDACTED testified about the independent neuropsychological evaluation regarding language skills and noted that overall, the evaluator found that REDACTED’s language skills were within the borderline low average range. REDACTED noted that REDACTED’s cognitive disorganization and executive functioning weaknesses impact her ability to demonstrate her language skills. In the area of executive functions, she would associate it with inattention and distractibility. REDACTED testified that while the language issues that REDACTED faced could be addressed by SLT, they could also be addressed through special education support classes. She did not believe, based on working with REDACTED, that she required the level of service the independent neuropsychological evaluation recommended. REDACTED testified that REDACTED achieved all her goals, she demonstrated that she possessed the foundational pragmatic language skills she needed and were age appropriate but had trouble accessing them due to social anxiety. She testified that she had never observed REDACTED interacting with peers in an academic setting and relied on the reports of other teachers that REDACTED was integrating the skills and demonstrating foundation knowledge in her interactions. In addition, REDACTED would tell her that she would use the skills she learned such as taking the small talk strategy and approaching ten people and making small talk and talking to people at the prom. (t. 441-45, 563, 568-72, 584, 587-88, 590-92, 598, 602-608, 614-18, 622-23, 632, 635-37, 646, 650, 889-90, 906, 930-33, 936-37, 958, 1038-41, Ex. 6, 7, 8, 10, 11, 23, 25, 26 AA)

An independent neuropsychological evaluation was performed by REDACTED, PhD.^[12] The evaluation was conducted over 4 days from 2/23/21 to 3/16/21, consisted of twenty-two tests and assessed REDACTED’s intellectual functioning, verbal skills, visual perception, visual-motor skills, memory, attention and executive functioning, academic functioning, and emotional functioning. The evaluations were done via ZOOM for three sessions and one in-person session. REDACTED testified that the sessions were a minimum of three hours, and that the in-person session was lengthier, from approximately 9:30 to around 2:30 or 3:00 at the latest, with a break for lunch. The in-person testing was done in her private office with minimal distractions and via ZOOM she makes sure the student is in a quiet room, again with minimal distractions. REDACTED has never met REDACTED prior to the evaluation. To prepare, she interviewed the Parent, reviewed medical records and prior evaluations. In addition, REDACTED also spoke to REDACTED, REDACTED’s private SLT provider and REDACTED, who had previously been REDACTED’s educational consultant and was evaluated by her practice. She also had REDACTED’s teachers fill out questionnaires but had no other communications with anyone from the District regarding REDACTED’s performance in class and overall functioning in school. In her testimony she revealed that at the time of her evaluation REDACTED was in a social skills group for a year with REDACTED and had been in private individual SLT with her since 2018. REDACTED did not observe REDACTED at home, in school or with peers. The Parents had requested the evaluation to get an understanding of REDACTED’s strengths and weaknesses to determine college readiness. REDACTED performed IQ testing, academic testing and did a broad assessment of many cognitive functions that were of concern and that she felt would be helpful in exploring REDACTED’s strengths and weaknesses. She described REDACTED as a lovely person, very sweet and cooperative, though a little immature noting that she brought stuffed animals to the in-person session for comfort. REDACTED described REDACTED as someone who is vulnerable to fatigue, but she testified that she did not see any gross fatigue and does not believe that the testing was affected by fatigue. In the evaluation, however, she noted “REDACTED needed breaks within testing sessions and was extremely cognitively fatigued following each testing session.”. REDACTED did not believe that anxiety affected the results of the evaluation and stated that while REDACTED had some anxiety, it was not to the point that she was unable to perform. She testified that REDACTED has test anxiety and finds tests to be stressful, but she maintained that the anxiety is related to academic testing not evaluative testing. REDACTED opined that with evaluative testing, it is one to one, there are no test scores to compare yourself to others and the subject won’t know that their IQ is being tested therefore there is no test anxiety. REDACTED testified that the testing revealed that in some areas of deficit REDACTED maintained and in others she stagnated. Her full-scale intelligence quotient (“FSIQ”) was measured by the adult intelligence scales at 94, whereas previously her FSIQ was measured using the children’s intelligence scales and in 2016 was evaluated at 105. REDACTED testified that the largest decline was in the area of verbal comprehension which was previously 106 (and at the time of the evaluation was 83). She testified that most of the changes in her FSIQ score were in testing on verbal comprehension and working memory. REDACTED testified “…what I’m seeing is that in certain critical skills, language-based skills, verbal abstract reasoning and word knowledge, she has had a decline. So she has not made progress, she sort of has stayed the same, but the examinations for her age have increased.” REDACTED is at an average level of ability but has deficits in several areas that REDACTED proposed these are related to inadequate interventions specifically for a language disorder though she could not specify over what period of time, or when therapy was insufficient.^[13] REDACTED testified that REDACTED presents as someone who has trouble sustaining attention especially when she’s cognitively overloaded which is how she met the criteria for a diagnosis of REDACTED. She noted that REDACTED, at the time of the evaluation, was able to function academically with a lot of support in school, at home and with outside tutoring. REDACTED expressed concerns about REDACTED going to college but at the time of the evaluation she had already been accepted to college and was mentally and emotionally committed to going. REDACTED recommended in the evaluation that REDACTED should receive private individual psychotherapy 1 x 60 per week, SLT increased by 3 x 60 per week and that the SLT should be private and to work on executive functioning skills with a professional 1 x 60 per week. The therapy sessions should go through the summer to help REDACTED prepare for college in the Fall as well as recommending that she take a college readiness program designed for students with learning disabilities. In addition, she recommended accommodations for use at college. (t. 699-702, 705, 707-18, 721, 731, 749-50, 756-57, 761-64, 769-72, 780-82, 791, 797-799, 800, Ex. 11)

The Committee on Special Education (“CSE”) met on 2/23/21 for the annual review to discuss REDACTED’s REDACTED year, REDACTED grade. It is a transition meeting to see how the student is doing and discuss their exit summary and make sure they are on track for graduation. The meeting was attended by REDACTED, chairperson, REDACTED, school psychologist, REDACTED, special education teacher, REDACTED, general education teacher, REDACTED, speech/language therapist, REDACTED guidance counselor, the Parent REDACTED, and REDACTED. The Parent testified that at this meeting REDACTED did not prepare at all, she just attended the meeting. At the meeting, they discussed REDACTED’s early admission to REDACTED, REDACTED had done a vocational inventory and it was discussed that REDACTED was thinking about a major for college, art, business or possibly history. REDACTED stated that she was not sure about art. There was a discussion about the IEE and it was requested that the Parent find out what testing was being done so, if the District needed to do testing they wouldn’t be doing the same tests. REDACTED stated that the District doesn’t have to do testing because they don’t need it for the purposes of planning a program but they could do adaptive scales for transition. They also discussed transition assessments and that they were doing numerous ongoing assessments, but the Parent should check with the evaluator to see if that was part of the IEE. The Parent specifically asked for the Vineland adaptive scales to be done. REDACTED testified that a transition assessment can include a lot of different pieces such as interest inventories, informal discussions or interviews with the student. There was also a discussion about SLT, and that the SLT goals were not on the IEP. An SLT provider, REDACTED attended the meeting to review the goals. They had a formal discussion about the goals and REDACTED made sure they were on the IEP. REDACTED testified that she believed that the IEP and goals were still appropriate and enabled REDACTED to make meaningful progress. REDACTED testified that there were no concerns raised about REDACTED academically or socially, but that REDACTED had talked about her social anxiety. She believed that the goals and the IEP were still appropriate and allowed her to make meaningful progress. REDACTED was doing well in her classes. REDACTED stated that she had seen a lot of growth in REDACTED since the REDACTED grade and that she has gained confidence in her abilities and is able to see when she is overwhelmed and uses strategies to get her through those situations. REDACTED testified that the Parent let her know what was being tested in the IEE. She communicated the information to REDACTED to see if she believed they needed anything additional, which she did not as the evaluation was going to be comprehensive. (t.105-06, 446-53, 881, 1033-37, Ex. 9, 24, G)

REDACTED testified that based on the request of the Parent the Vineland Adaptive Behavior Scales, Third Edition (“Vineland-III”) and Behavior Assessment System for Children-Third Edition (“BASC-3”) were done to be used as transition assessments. The tests were administered by REDACTED, school psychologist and the results were contained in a Confidential Psychological Report. REDACTED testified that psychological evaluations are multifaceted and when rating scales are done they are looking at adaptive functioning, which would fall under psychological evaluation.^[14] The teachers responses consistently found REDACTED’s behavior and skills age appropriate, while the responses of the Parent found her skills and behaviors to be comparable to those of a much younger child, particularly in the area of communication and socialization (approximately a 6 year old). She stated that the psychological evaluation was used as part of a transition assessment. There are a variety of different ways to assess transition, which include interest inventories, use of Naviance, discussion with teachers, counselors, adaptive scales, and rating scales, there is not one document that incorporates everything into a transition assessment. (t. 461- 62, 487, 492, 494 Ex. 12)

The CSE met again on both 5/18/21 and 6/7/21 as requested review meetings. On 5/18/21, they met to go over the independent neuropsychological report and the transition assessment. The Parent reviewed the neuropsychological report for the CSE, though usually that would be done by the school psychologist, or the professional who conducted the evaluation, because they know about the testing. The Parent stated that she had a good grasp of the results. The Parent stated that the results show alarming declines in REDACTED’s abilities and that they were devastating to her. REDACTED testified that the results of the neuropsychological evaluation were important to know but “…at the same time, we had had her in school for three quarters; and based off how she had been performing with all the intensity that I saw her and watched her work and checked in with her, I did not have concerns about her because of what I see anecdotally day in and day out.” REDACTED stated that evaluations are just a snapshot in time, a piece of a bigger puzzle. The Parent stated that she was not happy with the services and that the District did not provide REDACTED with the services that she needed. REDACTED disagreed and stated that SLT services were offered but the Parent did not want to access the services from the providers available. The Parent also advised that she was requesting an IEE for a transition assessment. REDACTED testified that it was a very contentious meeting and she felt upset because there were negative things being said and REDACTED was present at the meeting. The meeting had to be continued to 6/7/21 as REDACTED had to leave for another meeting. REDACTED stated that a discussion started at the 5/18/21 meeting revolved around the Parents concern that REDACTED had not finished all her assignments and was in danger of failing. At that time of year, REDACTEDs typically don’t go to school and instead go to internships. A plan was formulated which involved having REDACTED working with REDACTED to get all her outstanding assignments completed and submitted. In addition, they discussed including SLT in the schedule. REDACTED testified that the teachers and the Parent had different views of what REDACTED could accomplish. The Parent had a lot of concerns over REDACTED’s ability to transition to college. The Parent testified that what she learned during COVID was that the teachers were actually writing REDACTED’s papers for her, that she was heavily supported at the District and not taught to be independent. The Parent stated that while REDACTED might have the skills, she did not know how to implement them, use them in her own writing or in math. The teachers had seen what REDACTED was able to accomplish in school and felt that she had made a lot of gains. REDACTED testified that other than updating the testing, she does not recall any changes to the IEP and that it remained appropriate. (t. 120-22, 153, 168, 464-69, 885, 897-98, Ex. 11, 12, 19)

REDACTED testified that in the fourth quarter of REDACTED’s REDACTED year there came a time when she was not getting her work in. Support was put in place to help her complete her projects and submit them to her teachers. REDACTED put together schedules to help REDACTED focus on the assignments that were due, which was basically her school schedule. The schedules were also shared with the Parent and REDACTED. She testified that REDACTED had access to all of her teachers to get her outstanding assignments done, which she did quickly with the exception of her economics project which took longer. REDACTED worked on the economics project with REDACTED in ESC. Redacted testified that some students continued with their REDACTED schedule, while others do not because they go to a full day internship. REDACTED initially had a marketing internship, but after discussion with her and to provide more flexibility to complete her outstanding assignments that was switched to an internship with her existing job teaching tennis. She testified that she believed that REDACTED was quite happy about the change of internships and return to school. However, the Parent testified that when the District decided to let her use her job teaching tennis as her internship she nearly lost the job though it is unclear why. REDACTED testified that this is an option that is available to all students. REDACTED described the parent portal as basically a teacher’s grade book which is accessible to parents and students. When assignments are graded the grades are entered into the parent portal which allows parents and students to see how they are doing. If assignments are not handed in a zero may be used as a place holder once the assignment is submitted a zero goes away.^[15] REDACTED testified that REDACTED did not receive failing grades for her REDACTED year and her not getting assignments in was a sign of procrastination not a lack of independence. REDACTED did well in her REDACTED year. REDACTED testified that leading up to the May and June CSE meeting she had not had any teacher express concerns about REDACTED’s academics, language abilities or ability to write essays in college. (t. 123-27, 130-34,143, 180-82, 469-70, 893, Ex. 16, 18)

The CSE met on 6/7/21 for a requested review. Graduation requirements were reviewed, and it was reported that REDACTED was on track to graduate with a Regents diploma, she had one outstanding assignment to submit, the economics project and logs for her internship. The Parent testified that at both the May and June CSE meetings she expressed her frustration at the regression that she saw and failing grades. REDACTED graduated on 6/19/21 with a Regents diploma. Her final average for the 2020-2021 school year was 93.83 and was 92.36 for the fourth quarter. (t. 948, Ex. 19, 21)

REDACTED testified that based on reports at the CSE meetings and REDACTED’s report card, she did very well during her REDACTED year. The Parent believed that REDACTED was failing, and it was explained that she just needed to get assignments in. REDACTED experienced some “Senioritis” but with support she was able to pull it together and get her missing assignments in. By June, REDACTED had achieved all her IEP goals. The Parent testified that REDACTED required high levels of support throughout high school which she received from her mother. The Parent stated that that it was the work that she was doing behind the scenes that helped REDACTED to succeed; it was all the outside support and people doing things for REDACTED which helped her to succeed. The Parent testified that she would review materials with REDACTED for class and would help her rehearse for class if she had to speak, because REDACTED did not have any spontaneous speech so they would have to rehearse. The Parent stated that REDACTED was not prepared for college, because the District did not prepare her for transition from high school. The Parent pointed to the neuropsychological evaluation which she stated found that REDACTED had average levels of ability but the failure to receive adequate levels of therapy resulted in her inability to access higher level vocabulary as expected in an older teen. Also, the Parent contends that the failure of the District to evaluate REDACTED and address her language deficits are the “…root cause of her anxiety, her depression, the root cause of her self-esteem, her inability to make friends.” The Parent testified that REDACTED did not have a very good high school experience. She stated that despite her efforts, the District did not evaluate REDACTED or give her what she needed. The Parent testified that she requested that the District do an IEE three times (11/22/20, 2/23/21 and 3/3/21) and created her own consent form, which she sent to the District. The form requested specific tests, which the Parent testified that she did not know what the tests measured. She testified that she wanted skills that were not being tested in the IEE neuropsychological evaluation to be tested. The Parent stated that it was not up to her to know what the District should be testing, and they should not be waiting until the IEE neuropsychological evaluation is done to do additional testing. The Parent testified that she felt that the District was retaliating against her because she filed a complaint.^[16] On 6/19/21, the Parent sent an email to REDACTED following up on her request for an IEE, a psychological evaluation focused on transition for REDACTED because she disagreed with the psychological evaluation done by the District. In an email dated 5/24/21, REDACTED denied the Parent request and advised that she would be meeting with the Board of Education on 6/1/21 to obtain authorization to start a due process hearing to defend the Districts evaluation. And based on the Parents concern for REDACTED’s transition to college she also provided an application for REDACTED which provides support post-graduation.^[17] The Board of Education authorized the filing of a due process complaint. (t. 472-73, 476-79, 510-12, 887-88, 907-08, 912, 914, 927, 943-45, Ex. 11, 14, 21, 32, G)

CONCLUSIONS OF LAW

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

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

I find that based on the testimony and evidence adduced at the hearing that the District provided REDACTED with FAPE for the 2020-2021 school year and that the IEP and program recommended was reasonably calculated to confer an educational benefit to REDACTED. FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act] does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the ‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042. the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; Accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’)…An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (REDACTED Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially “everything that might be thought desirable by loving parents.” See Walczak, 142 F.3d at 132 FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. (Rowley, 458 U.S. at 203) In Endrew F. v. Douglas Sch Dist., 580 U.S. __ (2017) the Court found that an IEP should be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” The aim is to enable the child to make progress and an essential goal of an IEP is to set out a plan for pursuing academic and functional advancement. As stated by the Court, whether an IEP is reasonably calculated to enable a child to make progress in light of the child’s circumstances “reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials.” The CSE met on 6/22/20 to develop a program for REDACTED’s REDACTED year in high school. At the time of the meeting, the CSE team relied on teacher progress reports, Parent reports and observations, student report and input, and various assessments and evaluations which were dated from 2016 to 2020. REDACTED testified that the District had attempted to gain consent from the Parents to do an updated speech/language evaluation and also a triennial evaluation but had not received any response from the Parents. The District had sent out 5 PWN’s seeking consent (2 for the speech/language evaluation and 3 for the triennial evaluation). The Parent asserts that they had not received any requests for reevaluation. The District produced two return receipts attached to the PWN’s for the triennial evaluation, one of which was marked “no reply” and the other had the signature of REDACTED, the father of REDACTED, but the return receipt contained the wrong address. It should be noted that PWN is addressed to the correct address and a return receipt is attached to the back of an envelope and would not be the mailing address used by the Post Office. The Parent states that the signature is not her husband’s signature. I discount the Parents assertion that the mail carrier signed her husbands name and checked the box for agent. I do not credit the Parents assertion that they had received not one of the Districts requests for reevaluation. REDACTED testified that typically after a third request, with no response, the District can do the evaluations without consent but noted that while in the process of attempting to gain consent for the updated evaluations the COVID pandemic struck, the lockdown occurred, the schools were closed for in person instruction so things were delayed. In addition, the Parents and the District were in the middle of an impartial hearing, and she did not believe it was prudent to proceed with evaluations without consent. The CSE recommended Educational Support Class (“ESC”) 15:1 6x 8 day cycle 55 minutes, Counseling: Small Group (3:1) 1x weekly 30 minutes, Counseling: Individual 1x weekly 30 minutes, Speech/Language Therapy: Individual 1x weekly 30 minutes, Speech/Language Therapy: Small Group 1x weekly 30 minutes. REDACTED’s core subjects were all in general education classrooms and were supported by the ESC. The teachers and school staff were effusive in their praise for REDACTED, the progress she had made since she started high school both academically, socially, and emotionally. In fact, the principal made a special point of attending the meeting, prior to her retirement, to recognize the progress that REDACTED had made. I find that both the Parent and student fully participated in the CSE meeting and were actively involved in developing the IEP. The goals developed, with the input of the school staff, Parent and student were appropriate and measurable. While the Parent argues that they were not measurable, there is nothing in the record to support that assertion. I find that the District made reasonable efforts to reevaluate the student but their efforts were thwarted by the Parents failure to consent. I find that the CSE had sufficient information before them to develop the students IEP for the 2020-2021 school year and that the IEP and the program was reasonably calculated to confer an educational benefit to REDACTED. The Parent argues in the dpc that the CSE failed to develop an appropriately ambitious program by failing to offer ICT classes, ESC classes and SLT. The IEP developed on 6/22/20 included both ESC and SLT (though it is noted that the SLT goals were left out due to a clerical error). REDACTED testified that ICT classes are not offered, generally, to REDACTEDs but even if they were there is nothing in the record to support a finding that REDACTED required ICT classes. I do not find, based on the testimony and evidence, that math goals were required. I find that the program offered to REDACTED was appropriately ambitious, and designed to convey an educational benefit to the student.

REDACTED testified that REDACTED did very well in her REDACTED year and had developed the ability to work more independently, advocate for herself and seek help when needed. Her teachers reported that she was doing well and did not express concern that she required a different setting. She testified that the IEP and goals were appropriate and did not see the need at any time during the 2020-2021 school year to make revisions or add additional goals. REDACTED testified that an integral part of the ESC is to do informal vocational assessments and questionnaires and that she had done those and a vocational inventory with REDACTED. She also testified that in her REDACTED year, REDACTED had taken a class called Managing Your Future and that the school is constantly working on providing support for transition. REDACTED testified that in March REDACTED had told her that she was distracted and lacked motivation. That level of distraction and procrastination was, she testified, age appropriate and common among REDACTEDs and not a sign of lack of independence.

SLT services were recommended for REDACTED for the 2020-2021 school year, both individual and group. REDACTED stated that they were included at the request of the Parent. The Parent rejected the SLT provider at the high school, REDACTED, testifying that she had misdiagnosed REDACTED, that REDACTED did not like her or trust her, refused to work with her and did not have the qualifications to address REDACTED’s unique needs. There is nothing in the record to support a finding that REDACTED had misdiagnosed REDACTED, or that she did not have the qualifications to address REDACTED’s unique needs. REDACTED testified that in order to work for the District the SLT providers must be certified. As to whether or not REDACTED disliked or did not trust REDACTED, and refused to work with her, that is also not supported by the record other than the statements by the Parent. The Parent also asserts that the District was aware of the issues with REDACTED and were being retaliatory. I do not find that the Parent and/or students’ refusal to work with REDACTED is justified by the record. Furthermore, there is nothing in the record to support a finding that the District was retaliating against the Parent. In fact, the District sought to work with the Parent by attempting to find other SLT providers in the District to provide SLT services to REDACTED. The District advised the Parent that REDACTED was, at all times during the school year, available to provide SLT services, both individual and group, to the student. The District attempted to find another SLT provider to provide SLT services but the scheduling did not work out. The student did not access the SLT services for the bulk of the school year. Finally, in May REDACTED, due to changes in REDACTED’s schedule, was able to schedule SLT services with REDACTED on an accelerated schedule. The Parent asserts that the District failed to implement the SLT services for most of the school year. The Parent testified that she was aware that REDACTED was always available to provide SLT services to REDACTED which she continuously rejected despite her insistence of the severity of REDACTED’s needs in this area. The Parent apparently believed that the SLT providers at other schools in the District and the students who received those services should have their schedules upended so that REDACTED could receive SLT services by an SLT provider other than REDACTED. I find that the District properly offered the SLT services and that the Parent rejected those services and therefore there is no failure to implement. As the SRO found in Application of a Student With A Disability, Appeal No. 20-172 the decision by the Parent to decline to access services does not alter the fact that the District met its obligation to arrange for the service.

The CSE met three times during 2021, 2/23/21 as an annual review, and 5/18/21 and 6/7/21 as requested reviews. The 2/23/21 CSE meeting was characterized as a transition meeting to see how the student is doing in their REDACTED year, discuss their exit summary and make sure they are on track for graduation. The IEE was to start that day and the District asked the Parent to find out what testing was being done as the Parent was requesting that the District do an evaluation. Transition assessments were discussed and the District advised that they were doing numerous ongoing assessments. The Parent specifically asked for Vineland adaptive scales to be done. REDACTED stated that transition assessments can include a lot of different pieces. There was discussion about SLT and that the goals were not on the IEP, which was remedied. Both REDACTED and REDACTED testified that the IEP and goals remained appropriate and allowed REDACTED to make meaningful progress. She was doing well in classes and no concerns were raised about her socially or academically. The school psychologist, REDACTED noted that she has seen a lot of growth in REDACTED since the REDACTED grade, gaining confidence and using strategies she has learned when she is overwhelmed. The Parent advised the District of what tests were being used in the IEE and the District determined that they did not need to do additional testing as the IEE was going to be comprehensive.

An IEE in the form of a neuropsychological evaluation was performed by REDACTED, PhD. That IEE was presented by the Parent at a CSE meeting, requested review, on 5/18/21. The District is not obligated to adopt the findings and recommendations of the IEE but rather to consider it while crafting an IEP and recommending a program. The CSE team must consider IEE’s obtained at public expense and private evaluations obtained at private expense, provided that such evaluation meets the district’s criteria in any decision made with respect to the provision of a FAPE to a student, (34 CFR 300.502[2]; 8 NYCRR 200.5[g][1][vi]). In T.S. v. Board of Educ. Of Town of Ridgefield, 10 F.3d 87, 90 (2d Cir. 1993) the court noted “However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight.” The Parent testified that the results of the evaluation showed alarming declines in REDACTED’s abilities and was devastating. REDACTED testified that while the results of the neuropsychological evaluation were important to know it was a snapshot in time and part of a bigger puzzle. She testified that she saw REDACTED at school all the time and based on her performance at school, she did not have concerns about her. The District also felt that REDACTED was fatigued by the testing, which could affect the scores as might test anxiety. REDACTED testified that she was aware that REDACTED was prone to fatigue and was on the lookout for it and that she did not see any signs of gross fatigue and did not believe that the testing results were affected by fatigue. This assertion is belied by the inclusion in her evaluation that “REDACTED needed breaks within testing sessions and was extremely cognitively fatigued following each testing session.”. Furthermore, REDACTED testified that REDACTED has test anxiety and that she finds them stressful but maintained that the test anxiety only extends to school tests for academics, not to evaluations because no one knows their IQ is being tested or that they are being compared to others. REDACTED also noted that REDACTED came to the in person testing with stuffed animals for comfort. This testing may have created heightened anxiety as REDACTED appeared to reduce her anxiety with stuffed animals. The testing found a drop in REDACTED’s FSIQ from 105 to 94 and opined that was related to inadequate interventions but she could not specify over what period of time this occurred or when the therapy was insufficient. In P.K. ex rel. v. Bedford Cent. School Dist., 569 R. Supp. 2d 371 (2008) the court found that “The fact that the District staff ultimately disagreed with the opinions of plaintiffs and their outside professional does not mean that the plaintiffs were denied the opportunity to participate in the development of the IEP’s, or that the outcomes of the CSE meetings were ‘predetermined,’ A professional disagreement is not an IDEA violation.” REDACTED testified that it is well settled that IQ remains fairly consistent and a drop in IQ can be caused by trauma or stress or a viral illness. In addition, the testimony of the District witnesses and evidence presented show a much different picture of REDACTED. The District witnesses and evidence portray her as a student who is making progress academically, socially and emotionally and doing well in school and participating in sports and clubs at school. I do not credit the testimony of REDACTED and find the reliability of the test scores in question.

There is no dispute that REDACTED is a student with a disability but the dispute is the degree of her disability. The Parent, through her testimony and evidence, portrays REDACTED as a student with such severe deficits that she cannot perform academically or socially without intensive support, that her skills and behaviors are at the level of a much younger child, that she does not have spontaneous speech, that she was failing all her classes, and needed to rehearse before class if she needed to speak. In contrast, the District presented evidence of a student with a disability, who was doing well academically, making progress socially and emotionally, who was advocating for herself and was aware that she possessed pragmatic language skills but that social anxiety affected her ability to access those skills. There is no dispute that REDACTED actively participated in numerous clubs, played on the high school golf and tennis teams, managed the girls’ basketball team for 2 years and had a job as a tennis instructor. It is difficult to reconcile the student portrayed by the Parent, and in REDACTED evaluation, with the student participating on sports teams, in clubs, managing a team, having a job teaching tennis and achieving a Regents diploma with a final average of 93.83. Clearly a lot of work and support went into REDACTED’s successes not only by REDACTED but by her Parents, teachers, and District providers, as well as outside services and support. The overall picture of REDACTED is a student who has made tremendous progress, and not one who was regressing.

At the requested reviews held by the CSE on 5/18/21 and 6/7/21 the determination was made that the IEP and goals remained appropriate and no changes were made. The Parent sought an IEE for transition services asserting that the District had failed to provide transition services as directed in a prior decision.^[18] The District asserted that they had provided ongoing services and assessments for the student for transition. The record supports that assertion by the District. The testimony of REDACTED and REDACTED related that the school is actively working on transition with the students particularly in the REDACTED and REDACTED grades. I credit their testimony. In addition, the Parent filed a complaint with the NYSED Office of Special Education asserting that the District has failed to administer a vocational assessment and appropriate transition assessment and that charge was determined to be unfounded. I find that the District has properly provided transition services to the student. The Parent also alleges that she requested an educational evaluation from the District, in the dpc she asserts she requested it five times, in testimony and evidence it was requested three times and provides one email request. REDACTED testified that she recalled only getting one “homemade” consent from the Parent requesting the evaluation. The Parent testified that she listed specific tests she wanted done but conceded that she did not know what the tests measured but she wanted skills not being tested in the neuropsychological evaluation to be tested and essentially it was up to the District to figure it out. The request for an IEE educational evaluation was denied and a due process complaint filed by the District to defend their position was filed. I find that the record supports a finding that the District had sufficiently evaluated the student in all areas of suspected disability. The Parents request for an IEE is denied based on the foregoing.

The State Review Officer considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE for the student; or caused a deprivation of education benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). I do not find that the record supports a finding that the District impeded the student’s right to FAPE, impeded the Parent’s opportunity to participate in the decision-making process or caused a deprivation of educational benefit. In the dpc, the Parent makes a general allegation that there are numerous procedural violations but does not specifically state what they are.

I find the testimony of the District’s witnesses and evidence submitted credible. I find that the IEP developed and program recommended for the 2020-2021 school year was reasonably calculated to confer an educational benefit on REDACTED and met her unique needs.

The Parents request for compensatory education is denied as the District provided FAPE for REDACTED for the 2020-2021 school year.

Prong 2

Though I found the District provided FAPE for the school year at issue I will address Prong 2.

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

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

The Parent seeks reimbursement for private speech and language services provided at parental expense. The Parent has not provided any witnesses or evidence from the 2020-2021 school year from the private speech and language provider or established that the private services were appropriate and specifically designed to meet the unique needs of the student. Further, there was no evidence or testimony regarding the frequency of the services that the student was receiving. The request for reimbursement of private speech and language services for the 2020-2023 school year is denied.

Prong 3

Though I found the District provided FAPE for the school year at issue I will address Prong 3.

The third prong of the test for educational funding is whether the equities favor the Parent’s position or the District. The Parent appeared at all CSE meetings and was actively involved in the process. However, I find that the Parent actively thwarted the Districts ability to evaluate the student therefore I find the equities favor the District.

ORDER

In view of the foregoing, I find that the District provided FAPE to REDACTED for the 2020-2021 school year.

The Parents request for an order directing the District to fund a reevaluation of REDACTED is denied; the request for appropriate transition services to include a college readiness program is denied; a provision of the recommendations and services as outlined in the independent neuropsychological evaluation is denied; an independent educational evaluation in transition is denied; reimbursement for private speech and language services is denied; the request for compensatory education is denied.^[19]

Therefore, it is hereby ordered that the Parents due process complaint for the 2020-2021 school year is dismissed.

Further, it is hereby ordered that the Districts due process complaint seeking an order that it has fully and properly evaluated the student in all suspected areas of disability and that the Parent is not entitled to an IEE for an educational evaluation is granted.

Dated: April 16, 2023

___________________________________

Jeanne M. Keefe

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 7, 2022

Parent Due Process Complaint, dated 6/18/21, 7 pages

District

District Due Process Complaint, dated 7/1/21, 3 pages

District

District Answer, dated 7/7/21, 3 pages

District

Educational Evaluation, dated 11/10/16, 4 pages

District

Confidential Psychological Evaluation, dated 12/14/16, 9 pages

District

Neuropsychological Assessment, dated 11/28/17, 13 pages

District

2020-2021 IEP Annual Review, dated 6/22/20, 18 pages

District

Email: REDACTED & REDACTED Re: Speech and Language Services, dated 9/28/20-9/30/20, 2 pages

District

2020-2021 IEP Annual Review, dated 2/23/21, 18 pages

District

10.

Email: REDACTED& REDACTED Re: Speech, dated 2/24/21-4/5/21, 4 pages

District

11.

Neuropsychological Evaluation, dated 4/5/21, 21 pages

District

12.

Confidential Psychosocial Evaluation, dated 5/5/21, 7 pages

District

13.

Email: REDACTED& REDACTED Re: Speech, dated 5/18/21, 2 pages

District

14.

Email: REDACTED& REDACTED Re: IEE request, dated 5/1/21-5/24/21, 4 pages

District

15.

Email: REDACTED to REDACTED& REDACTED Re: Update on REDACTED’s Schedule, dated 5/24/21, 2 pages

District

16.

Make Up Schedule, dated 5/19/21-5/27/21, 2 pages

District

17.

For Identification

District

18.

Make Up Schedule, dated 6/1/21, 3 pages

District

19.

2020-2021 IEP Request Review, dated 6/7/21, 20 pages

District

20.

Post-Secondary Student Exit Summary Report, dated 7/7/21, 3 pages

District

21.

2020-2021 Report Card, dated 7/7/21, 1 page

District

22.

Email: REDACTED& REDACTED Re: Documents, dated 7/2/21-7/13/21, 6 pages

District

23.

CSE Meeting Video and Condensed Transcript, dated 6/2/20, 40 pages,

Video For Identification, Condensed Transcript entered

District

24.

CSE Meeting Video and Condensed Transcript, dated 2/23/21, 30 pages, Video For Identification, Condensed Transcript entered

District

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 24, 2022

25.

Speech and Language Re-Evaluation, dated 12/2/16, 4 pages

District

26.

REDACTED Language Evaluation, dated 9/27/18, 14 pages

District

27.

Requests for Consent to conduct a Speech and Language Evaluation, dated 6/24/19-7/16/19, 6 pages

District

28.

Requests for Consent to conduct a Reevaluation, dated 10/8/10-1/23/20, 8 pages

District

29.

Email: REDACTED, REDACTED and REDACTED. Re: Meeting Invitation, dated 5/4/21-5/11/21, 2 pages

District

30.

For Identification

District

31.

For Identification

District

32.

2020-2021 Progress Report, dated 6/24/21, 4 pages

District

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 2, 2022

23.

CSE Meeting Video, dated 6/2/20,

Video entered

District

24.

CSE Meeting Video, dated 2/23/20,

Video entered

District

31.

Speech and Language Session Notes and Activities, dated 5/20/21-6/21/21, 23 pages

District

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 23, 2022

33.

Return Receipts, dated 1/24/20-6/24/20, 4 pages

District

REDACTED Report, dated 11/19/19, 5 pages

Parent

2019-2020 IEP, dated 11/19/19, 17 pages

Parent

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 10, 2022

Progress Report, dated 5/12/21, 1 page

Parent

Progress Report with grades, dated 6/21/21, 1 page

Parent

For Identification

Parent

For Identification

Parent

Consent for Reevaluation, dated 3/3/21, 1 page

Parent

Not Entered

Parent

Progress Report Summary, dated 5/6/21, 1 page

Parent

Duplicative

Parent

Email from REDACTE, dated 3/10/21, 1 page

Parent

Progress Report, dated 3/23/21, 1 page

Parent

REDACTED Attendance Letter, dated 3/10/21, 1 page

Parent

Progress Report Summary, dated 5/7/21, 3 pages

Parent

REDACTED Progress Note, dated 3/8/20, 2 pages

Parent

REDACTED Progress Note, dated 4/1/20, 3 pages

Parent

Duplicative

Parent

Duplicative

Parent

IEP 2021-2022, dated 6/7/21, 23 pages

Parent

For Identification

Parent

Email to REDACTED, dated 3/10/21, 1 page

Parent

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 9, 2022

Not entered

Parent

Not entered

Parent

Not entered

Parent

REDACTED School District Prior Written Notice, dated 7/13/21, 2 pages

Parent

Email from REDACTED, dated 5/20/21, 1 page

Parent

AA.

Emails between REDACTED and REDACTED, dated 4/7/21, 2 pages

Parent

BB.

Draft IEP, dated 1/29/21, 16 pages

Parent

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 18, 2023

34.

For Identification

District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

Statement of Adjournments and Extensions, undated, 1 page

IHO

II.

Memorandum of Law on Behalf of the REDACTED School District, dated 3/27/23, 31pages

IHO

III.

Parent’s Brief, dated 3/27/23, 27 pages

IHO

IV.

Districts Motion to Consolidate, dated 7/21/21, 12 pages

IHO

Districts Response to Parents Objections to Motion to Consolidate, dated 8/2/21, 6 pages

IHO

VI.

Order Of Consolidation, dated 8/23/21, 3 pages

IHO

VII.

Districts Motion to Dismiss, dated 9/17/21, 154 pages

IHO

VIII.

Parents Opposition Of Motion To Dismiss, dated 10/22/21, 43 pages

IHO

IX.

Districts Reply to Parents Opposition to Motion to Dismiss, dated 11/1/21, 3 pages

IHO

Parents Reply to Districts Response to Opposition to Motion to Dismiss, dated 11/15/21, 6 pages

IHO

XI.

Order on Motion to Dismiss, dated 12/1/21, 6 pages

IHO

XII.

Districts Letter Brief in support of admission of video evidence, dated 3/28/22, 16 pages

IHO

XIII.

Parents Opposition to admission of video evidence, dated 4/11/22, 7 pages

IHO

XIV.

Order on Motion to Enter Video Evidence, dated 4/18/22, 2 pages

IHO

Footnotes

[1] The Parent testified that when REDACTED entered REDACTED in the REDACTED grade the District cancelled their contract with REDACTED and advised her that the services would be provided “in house”. (t. 867)

[2] REDACTED, the guidance counselor, noted at the CSE annual review meeting on 6/22/20 how much progress REDACTED had made “from walking [you] to your classes the first week of REDACTED grade to how well you have learned to advocate for yourself and have really become a leader within your classrooms and with REDACTED and in your extracurricular activities and opportunities.” (Ex. 23, p. 20)

[3] A review of the Parents due process complaint revealed that it referred to services, not assessments. The District stated that it would be prepared to defend the lack of transition services (Ex. 1, XI)

[4] The District produced 2 return receipts for the PWN for triennial evaluations. One return receipt, with a date of delivery of 6/23 is signed by REDACTED and the box for agent is checked, but the address is incorrect on the return receipt. The Parent states that the box is checked for agent and therefore the mail carrier signed it. A second return receipt dated 1/24/20 is marked “no reply”. (t. 950-53, Ex. 33)

[5] The principal attended the meeting, prior to her retirement, to recognize the progress that REDACTED has made over the years. “I could not not attend this meeting. I just want you to know how proud I am and, REDACTED, if you knew REDACTED two, three years ago, you would never have guessed that it’s the same person, and she has grown and matured and her self-confidence is so much better. And last year when we were talking about an English class, she was there fighting for what she needed and she has proven that she can do it. So I couldn’t let this meeting go by without just saying how proud I am of everything she had done.” (t. 422, Ex. 23 p.21)

[6] REDACTED stated that the ESC is a special class that focuses on the academic, organizational, and executive function needs of the students and connects to their IEP goals.

[7] The Parent testified that in June, 2020 REDACTED was seeing a private SLT provider for speech and language but could not recall if she was seeing anyone for the social piece. (t. 929)

[8] REDACTED, the general education teacher, and REDACTED’s US History teacher noted that REDACTED“was a huge help in getting REDACTED done….she’s been involved in REDACTED; she’s been a huge asset. She talked to me about possibly a leadership position next year on the art staff and I thought that was a great idea. She did—a really good leader in terms of, you know, getting people to meet deadlines and getting stuff done, she’s just that kind of kid…” (Ex. 23, p. 16-18)

[9] Pursuant to 8NYCRR§200.6(g) integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and general education students.

[10] There are no ICT classes available during REDACTED year in math and English. REDACTED testified that that they are helping students get ready for life after high school and when you go into the workforce or to college there are no co-taught settings, and they want to make sure that the students have the necessary skills to be successful. (t. 153, 337)

[11] The Parent testified that she rejected REDACTED because she had misdiagnosed REDACTED and REDACTED did not have a good relationship with her. The Parent testified that REDACTED refused to work with REDACTED because she did not trust her and did not like her. The Parent stated that the District was aware of this for years and that they were being retaliatory. (t. 889, 933, 958)

[12] The independent neuropsychological evaluation was done pursuant to an order by the SRO, Appeal #20-172. (Ex. VII)

[13] REDACTED testified that it is well documented that IQ remains fairly consistent over the lifespan but that it can be caused by “…traumatic brain injury, which is the only way we tend to see like a drop in IQ. Trauma or stress is a way that we see a drop in IQ. I would also say that like an illness, like a viral illness, that has some impact on cognition. Those are the type of things that would cause someone’s IQ to drop, even in a certain area.” (t. 267, 269)

[14] The Parent filed a complaint with the New York State Education Department (“NYSED”) Office of Special Education against the District dated 6/17/21 with four allegations. The allegation germane to this inquiry is “Failure to administer a vocational assessment and appropriate transition assessment.” In a decision dated 8/13/21 the NYSED Office of Special Education found “This Office finds that pursuant to both the IHO decision and the SRO decision, the District was required to conduct transition and vocational assessments for the Student. In May 2021, the District completed two evaluations of the Student in addition to a review of the Student’s educational records. Further, the CSE considered reports and evaluations provided by parents, teachers/therapists during two CSE meetings held in May and June 2021. Therefore, this Office finds there is no regulatory violation, and this portion of the allegation is not sustained.” (t. 462-64, Ex. VII)

[15] REDACTED testified that the parent portal is not an official record it is for informational purposes. The portal states that “This information is provided for convenience only and has not been verified for accuracy. Not intended to be an official record.” (t. 1032-33, Ex. L)

[16] The Parent testified that she had been advocating for REDACTED for 15 years and she felt that “It really started to feel like they were going to stick it to me as a parent because here I am trying to advocate for my child.” The Parent also testified that she has been working with other families as a special education consultant for 15 years trying to help them get what they need for their children. She later clarified that it was an independent consulting role that she held years ago, that she had no formal training or certifications, and no longer does it. (t. 888, 919-20)

[17] ACCES-VR provides adult career and continuing education services and vocational rehabilitation and is part of the New York State Department of Education.

[18] The term transition assessments and transition services appear to be used interchangeably as the Parent is seeking an evaluation for transition.

[19] The parties were advised to be sure to address all issues, and relief requested, as set forth in the due process complaint or they would be deemed abandoned. (t. 3, 291, 548, 666, 817-18, 980, 1019)

Impartial Hearing Decision

INTRODUCTION

BACKGROUND

FINDINGS OF FACT

CONCLUSIONS OF LAW

ORDER