NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NEW YORK STATE DEPARTMENT OF EDUCATION
In the Matter of REDACTED on behalf of the minor child, Redacted
-against-
SED Case #: 550896
REDACTED Central School District,
An Impartial Hearing Pursuant to Education Law §4404 and 8 NYCRR Part 200
FINDINGS OF FACT AND DECISION
Actual Record Close Date: June 15, 2022
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
10/11/21 hearing date:
For the Student:
Redacted, Esq. (via phone)
For the District:
Redacted, Esq. (via phone)
11/8/21 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
For the District:
Redacted, Esq.
Redacted, Director of Special Education
Redacted, Supervisor of Special Education
Redacted, Supervisor of Special Education
11/12/21 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
For the District:
Redacted, Esq.
Redacted, Director of Special Education
Dr. Redacted, School Psychologist
Redacted, Speech-Language Pathologist
12/20/21 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
For the District:
Redacted, Esq.
Redacted, Director of Special Education
Redacted, Special Education Teacher
REDACTED Special Education Teacher
Redacted, Special Education Teacher
1/10/22 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
For the District:
Redacted, Esq.
Redacted, Director of Special Education
Redacted, Special Education Teacher
REDACTED, Special Education Teacher
REDACTED, Special Education Teacher
2/9/22 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
REDACTED, School Psychologist, REDACTED CSD
Dr. REDACTED, Neurofeedback Therapy
Redacted, Reading Specialist
REDACTED, Teacher, REDACTED Preparatory School
For the District:
Redacted, Esq.
Redacted, Director of Special Education
REDACTED, Special Education Teacher
2/18/22 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
Redacted, Reading Specialist
For the District:
Redacted, Esq.
Redacted, Director of Special Education
2/23/22 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
For the District:
Redacted, Esq.
Redacted, Director of Special Education
2/28/22 hearing date via ZOOM:
For the Student:
Redacted, Esq.
Redacted, Parent
For the District:
Redacted, Esq.
Redacted, Director of Special Education
INTRODUCTION
On 9/2/21, I was appointed as the Impartial Hearing Officer (“IHO”) by the REDACTED Central School District (“the District”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f)(1) concerning a dispute involving the special education program for REDACTED (“REDACTED” or “the student”) for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years.
BACKGROUND
REDACTED is a REDACTED student who currently is in the 8th grade and attends REDACTED Middle School (“Redacted”). He is classified as Other Health Impairment (“OHI”), that classification is not in dispute. REDACTED was pre-screened for kindergarten and was placed in an integrated co-teaching (“ICT”) class[1]. At that time, the Parent was told, by the speech pathologist, that REDACTED could not do WH questions, and the teachers in the classroom advised her of other concerns. The Parent testified that REDACTED was struggling to pay attention and there were concerns with speech. Based on those concerns the Parent had a Neuropsychological Evaluation done by Dr. Redacted. Dr. REDACTED assessed REDACTED over five days beginning in December 2013 through January 2014. Dr. REDACTED found that REDACTED’s overall cognitive abilities fell in the below average range, had significant language skills problems and diagnosed REDACTED with Attention Deficit Hyperactivity Disorder (“ADHD”). Dr. REDACTED identified a significant perceptual-motor disorder, that REDACTED’s attention fell in the impaired range, that he had a reading disorder, as well as difficulties in math.[2] The Parent testified that Dr. REDACTED found REDACTED’s attention difficulties were a significant issue for him. REDACTED attended Kindergarten at REDACTED Elementary School (“REDACTED”), then went to REDACTED for a self-contained class for speech and language for the 1st and 2nd grade. REDACTED returned to REDACTED for the 3rd grade. (t. 1010, 1315-20, 1524-37, Ex. 24)
The Parent asserts that the District failed to provide REDACTED with a free and appropriate public education (“FAPE”) for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years. The District contends that REDACTE was provided with FAPE for the school years at issue.
FINDINGS OF FACT
In the 4th grade, REDACTED was in an 8:1:1 special class for English Language Arts (“ELA”) and math, ICT class for social studies and science, ICT services 1x daily 1 hour, Speech/Language Therapy (“SLT”) small group 5:1 60x yearly 30 minutes, SLT individual 30x yearly 30 minutes, Occupational Therapy (“OT”) small group 1x weekly 30 minutes, OT individual 1x weekly 30 minutes and Psychological Counseling Services (“counseling”) individual 30x yearly 30minutes as well as extended school year services (“ESY”)[3]. Redacted, supervisor of special education testified that the 8:1:1 special class was geared towards children with a severe communication disorder who needed explicit instruction in a small setting to learn. The ELA block was 1 hour and ten minutes, wherein the teacher works in small groups or 1:1 with the students. REDACTED also had a 1:1 aide for the full day. Ms. REDACTED testified that REDACTED had a lot of difficulty in attending to instruction and she understood from the teachers that this was part of the reason for the 1:1 aide, to help him with attention and focus and keep him on task. (t. 45-49, Ex. 2)
A Comprehensive Neurodevelopmental Evaluation was administered in November 2017 for REDACTED by Dr. REDACTED and his clinical team at The REDACTED Center.[4] REDACTED was evaluated on 11/7 and 11/8/17. The evaluation noted that while REDACTED was cooperative and readily participated in assessments his level of engagement would fluctuate as time went on. The report stated that “Within tasks, REDACTED would appear engaged and perform at a high level for limited periods of time. However, as he progressed, his performance deteriorated as he began responding impulsively and at times randomly. This pattern recurred across tasks and work sessions. Since tasks all become progressively more challenging, it was difficult to determine the degree to which the progressive deterioration in performance were more reflective of limited ability or limited focus. However, it appeared that REDACTED’s inability to sustain focus for more than a few minutes significantly undermined his performance across tasks, even when items were not otherwise challenging for him.” In addition, the evaluation stated that a lot of redirection was needed to get REDACTED to engage in tasks. Even with the redirection efforts some tasks had to be modified or discontinued. These concerns led to a caveat that “…the results described in this report may represent an underestimate of REDACTED’s abilities and skills.” Throughout the evaluation it is noted that REDACTED’s issues with attention are linked to his academic concerns generally but specifically in reading, writing and math. In conclusion the evaluation notes that REDACTED has several strengths which can help him make progress in school but that he does have challenges which impact negatively on academics. The report makes the following diagnosis: Mixed Receptive-Expressive Disorder, Reading Disorder, Dyslexia, ADHD Combined Type, and Executive Function Deficit. (Ex. 34)
On 1/18/18 the Committee on Special Education (“CSE”) met for a requested review to go over the Neurodevelopmental Evaluation by Dr. REDACTED. The meeting was attended by employees of the District, including Ms. REDACTED, Chairperson, C. REDACTED, school psychologist, the Parent and REDACTED, advocate. Ms. REDACTED stated that the evaluation was reviewed and found that the report confirmed some of the things that REDACTED needed as part of his program and confirmed what they already know about him, such as his difficulties sustaining focus and attention. The Parent testified that it was accurate to state that REDACTED’s issues with stamina and sustaining attention could have the effect of lowering test scores in various assessments. However, she testified that one of the main issues was that REDACTED has dyslexia and it was not being addressed by the District. The Committee reviewed the recommendations and accommodations in the report. The Committee made a number of recommendations among them access to speech-to-text software, access to a computer, and Bookshare to help him with reading and writing. In addition, the recommendation was made to give REDACTED the WIST or WADE to see if he would benefit from the REDACTED program. Ms. REDACTED testified that she did not believe that REDACTED presented as a student with dyslexia because he had strong decoding skills. It was her opinion that REDACTED’s difficulty was in comprehension. (t., 51-59, 1016, 1029-30, 1327-31, 1558-60, Ex. 3, 34)
The Parent chose not to send REDACTED to the ESY services offered by the District. The Parent advised Ms. REDACTED that she was sending REDACTED to a summer program at REDACTED It was a day camp for 6 hours a day. The Parent stated that the District was not addressing REDACTED’s dyslexia during the regular school year or in the ESY program. The Parent advised that REDACTED was offering 1:1 daily Orten-Gillingham tutoring for 1 hour plus study hall and supportive services, as well as addressing his social skills deficits. The Parent testified that she believed that the instructor for the tutoring was Orten-Gillingham trained but did not know specifically. In addition, there was archery, woodworking, film, mountain biking and a sports clinic. The Parent testified that after the program REDACTED’s comprehension and fluency improved. (t. 1461-63, 1663-64, Ex. PP)
REDACTED was entering the 5th grade for the 2018-2019 school year. An annual review was held on 4/5/18 to develop an Individualized Education Program (“IEP”). The CSE met, and the meeting was attended by employees of the District, as well as the Parent. Ms. REDACTED testified that the meeting went well and was not contentious. It was reported that REDACTED made progress in all academic areas and that he needs structure and clear expectations. The 8:1:1 special class for ELA and math (the Redacted Program) was recommended because it provided the structure and expectations, as did the ICT classes for social studies and science. ESY services were recommended, special class 12:1+1, SLT 1:1 and counseling 1:1. Related services of SLT, OT and counseling were also recommended. A 1:1 aide was recommended to help REDACTED maintain focus and attention, as well as remind him of the rules and expectations and prompt him when necessary. REDACTED’s ELA teacher reported that he is making progress in reading, his fluency has improved, and he is using text to support his answers. The results of the WADE were reviewed, and they learned that decoding really wasn’t an area of deficit for REDACTED. It was noted in the minutes that REDACTED’s mother believes the program is not appropriate because he is dyslexic, that he needs a school for dyslexia and that it has taken him a long time to make progress and is still far behind. The Parent testified that she raised the issue of REDACTED’s diagnosis of dyslexia at the meeting and that the CSE disagreed with that diagnosis based on the results of the WADE. The CSE team felt that REDACTED is not dyslexic because his strengths are in both decoding and encoding, he is making progress in reading and that his problems have more to do with attention, focus and comprehension.[5] Goals were recommended for Study Skills, Reading, Writing, Math, Speaking/Listening, Speech/Language, Social/Emotional/Behavioral and Motor Skills. Modifications and Accommodations were also recommended. The accommodations, such as breakdown of assignments, visual supports and 1:1 teaching assistant were meant to address the students’ attentional deficits. Ms. REDACTED did not recall any disagreement with the goals, accommodations, and modifications. She testified that it was important to the Parent that REDACTED interact with typically developing peers and to build the capacity to learn in a larger setting, such as an ICT class. Ms. REDACTED testified that she believed that the IEP was appropriate for REDACTED because it supported him in special class as well as the larger ICT class and his related services were appropriate and would allow him to continue making progress. On 10/2/18 the IEP was amended/no meeting to add a personal FM system to REDACTED’s program to help with attention and minimize background noise.[6] The Parent testified that she believed that the FM system might help REDACTED to attend in class and that attention was a significant issue which hindered his success in the classroom. (t. 60-65, 75, 88-89, 95, 123-26, 130-34, 1332, 1336-37, 1572-73 Ex. 4, 5)
REDACTED testified that he was REDACTED’s 5th grade teacher for the 8:1:1 class for ELA and math at REDACTED. REDACTED spent half the day in his class and the other half of the day in his ICT classes. Mr. REDACTED described REDACTED as very sweet and friendly, who loves attention especially from teachers. REDACTED struggled across the board academically, was below grade level but was able to make gains in his class. While he presented as social, particularly with adults, he did not always follow social norms and struggled with social conflicts. Attentionally, REDACTED needed frequent redirection. The 8:1:1 class has a maximum of 8 students, a special education teacher and teaching assistant (“TA”). The instruction is done in small groups. REDACTED’s reading group had no more than 2 students, writing no more than 8 students and math no more than 3 students. The small group instruction gives REDACTED the constant back and forth he needed to keep him engaged and allowed the teachers to redirect him as needed. Mr. REDACTED testified that during the 2018-2019 school year he was trained in several reading programs which he uses in his classroom, including being a certified REDACTED Reading Program (“REDACTED”) practitioner. He described REDACTED as a program used with children and adults with dyslexia but also with those who are simply struggling readers. Mr. REDACTED stated that he was aware that there were concerns about REDACTED’s reading and he would use the REDACTED program with him daily, most of the time 1:1 but also in a group of no more than two for 30 minutes. Mr. REDACTED testified that REDACTED did not present a lot of the characteristics of a dyslexic student such as reversing letters, unable to read and flipping words in a sentence. He REDACTED that REDACTED had strengths in decoding and encoding and that his decoding skills were higher than his comprehension skills. Since REDACTED is mostly for decoding, he would supplement the program with comprehension work, such as guided reading, because it was his feeling that it was the comprehension that was holding REDACTED back, not the decoding. Guided reading is done 1:1 or in a group chunking books into smaller pieces, talking about them and pulling out details and responding to comprehension questions. Mr. REDACTED explained that REDACTED does not have text rich materials for REDACTED to engage in conversations about books, making inferences or pulling out specific details to check for comprehension. Mr. REDACTED used a lot of muti-sensory learning to try and get new skills imprinted on the brain, REDACTED is a multi-sensory, computer-based program. REDACTED was inconsistent in his ability to add and subtract, so in math they used a combination of Touch Math and Go Math as well as a multi-sensory math program provided by the Parent. The teacher felt that REDACTED was making gradual gains though still performing below grade level. REDACTED’s attention and focus impeded his ability to learn even in 1:1 or a small group. (t. 519-26, 528-30, 539, 541, 560, 571-72, Ex.4)
REDACTED was entering Middle School for the 6th grade for the 2019-2020 school year. An annual review was held on 1/10/19 to develop an Individualized Education Program (“IEP”). The CSE met, and the meeting was attended by employees of the District which included Ms. REDACTED as the Chairperson, Ms. REDACTED, school psychologist and Mr. REDACTED special education teacher as well as the Parent. Mr. REDACTED reported that REDACTED was making progress in reading and was, in Fountas & Pinnell levels, one level away from 3rd grade. REDACTED had ended the prior year at a level J and was now at level L. It was noted that he was doing REDACTED daily and his strengths were decoding and sight words. REDACTED was working on comprehension and vocabulary. REDACTED was making progress in writing, he was at the second-grade level and on the third grade level in math. The recommendation of the CSE was for the REDACTED12:1+1 for English, math, social studies, and science. Also related services of SLT, OT and counseling. The REDACTED is the middle school companion program to the REDACTED (8:1:1 special class) at ASM. Typically, the students from the REDACTED go to the REDACTED. The Parent expressed reservations about the REDACTED and testified that she did not have an adequate explanation about why the REDACTED would be an appropriate placement for REDACTED and specifically how it would address his reading comprehension and math issues. The REDACTED is a 6th, 7th and 8th grade program typically for students with autism or having behaviors associated with autism. The Parent stated that one of the issues she had with the REDACTED was that REDACTED would be in that class all day, there would be no ICT classes. Mr. REDACTED testified that the Parent wanted REDACTED to be more in the mainstream classes. Another option that was considered was a 15:1 special class program in the middle school or ICT classes for the four core subjects. Ms. REDACTED testified that they determined just ICT classes alone would not be supportive enough for REDACTED. The Parent testified that this was a contentious meeting, and it was her position that the school was not providing sufficient interventions for REDACTED and his unique learning style. The decision on programing was deferred so that the Parent could research the programs available at the middle school before a decision was made. The Parent testified that she was not happy with the progress that REDACTED was making in math and reading, and she started neurofeedback sessions to treat his ADHD.[7] In addition, the Parent hired a reading tutor.[8] (t. 99-101, 103-05, 532, 534-35, 1016-18, 1339, 1344-47, 1575-76, Ex. 6)
REDACTED, school psychologist at REDACTED testified that she provided REDACTED with both individual and small group counseling.[9] She described REDACTED as a fine young man, who tried but struggled with changes in routine and attention. She stated that he could be very distracted by his own thoughts, which could impact his learning and he liked his routine, and changes had an impact. Ms. REDACTED conducted the triennial re-evaluation for REDACTED. She found that REDACTED’s scores were very scattered, and that REDACTED had a hard time sustaining task-oriented behavior and required frequent breaks. If he found something particularly challenging, he would get REDACTED and not want to continue. She found that REDACTED had a lot of difficulty sustaining attention, unless it was something that he was really interested in. He worked very slowly. Ms. REDACTED testified that she did not believe that REDACTED was dyslexic because decoding skills were one of his strongest skills. “The true dyslexic student is unable to break the code. They have a hard time recognizing fluently, easily that the little squiggles on the REDACTED match the sounds, the phonemes that we make. So they confuse them and it becomes very hard for them.” Ms. REDACTED believed that REDACTED’s issues stemmed from difficulty in comprehension. Ms. REDACTED testified that she strongly believed that REDACTED’s learning needs were based on his being on the autism spectrum and that the Perceptions teachers were adept at teaching autistic students.[10] She testified that transferring to middle school was going to be a challenge for REDACTED, she believed he could succeed but that changing classes every 42 minutes would have an impact on him, given his struggles with changes in routine and attention. REDACTED was already in a hybrid program in elementary school and there were numerous conversations about what would be best for him in middle school. Ms. REDACTED testified that she recalled that the Parent wanted REDACTED in as typical a classroom as possible but also felt strongly about him being provided with specific individualized and intensive supports. They discussed with the Parent the options available. Ms. REDACTED stated that she believed that the programs that REDACTED had in the 4th and 5th grade were very successful for him and they were trying to find the right program in middle school to mirror that success. She recalled that the Parent acknowledged that the program that REDACTED was in at ASM was doing good things for him. Ms. REDACTED saw the benefit of REDACTED being in an ICT class with typical peers in a larger setting but also the benefits of being in a smaller setting. A lot of time was spent discussing what would be the best placement for REDACTED with the Parent and the CSE team. Ms. REDACTED stated that during those discussions it became clear to her that the Parent was not agreeable to the REDACTED. Ms. REDACTED and Mr. REDACTED talked to the rest of the CSE team and service providers and made the determination that if the Parent does not want the self-contained program to move on and concentrate on what would be the most supportive options in a more mainstream setting.[11] (t. 981-82, 991-1001, 1004-09,1018-19,1025-27, 1029-30, 1348-49, Ex. 29, V)
On 5/9/19, the CSE met for a requested review. The CSE meeting was attended by employees of the District which included Ms. REDACTED as the Chairperson, Ms. REDACTED, school psychologist and Mr. REDACTED special education teacher as well as the Parent. At that time, goals for telling time and money were added to REDACTED’s 5th grade IEP, at the request of the Parent, as telling time and understanding the concept of money were areas of deficit for him. They also met to go over the recommendations made for REDACTED’s IEP for the 6th grade. It was reported that REDACTED was making progress in SLT, that he benefitted from the review of materials and scaffolded questions to maintain attention and focus. Mr. REDACTED testified that he did not believe that the use of the REDACTED program should continue in the 6th grade because comprehension is the problem for REDACTED and REDACTED is not great at targeting comprehension. The mainstream teacher reported that REDACTED requires the support of an aide to stay focused in the ICT class. In the 8:1:1 it was noted that he is more independent and does not need the support of an aide. Though Mr. REDACTED testified that REDACTED did have an aide in his class to provide redirection and reteaching and that sometimes REDACTED would over rely on the aide. The Parent questioned the need for an aide in the ICT class and was advised an aide was necessary because he has a hard time starting tasks and remaining focused. The recommendation was made for a 2:1 aide for the ICT classes. The aide would be shared with another student. The reasoning was that REDACTED was becoming more independent, so he did not need the full attention of the aide but still needed the support. The aide would fade back and be there for support when needed. The Parents preference for programming was for the 15:1 class for ELA and math and ICT classes for science and social studies. Ms. REDACTED testified that there was no disagreement as to the goals and no request to delete, modify or add goals. The CSE recommended the 15:1 class for English and math and ICT for science and social studies, SLT: small group, OT: small group and counseling: small group. The Parent asked for Orten-Gillingham(“O-G”) instruction but was denied because the District stated they don’t provide that and don’t subscribe to any one specific program or methodology. The Parent testified that the recommendation for the 15:1 math and ELA with ICT for science and social studies was appropriate and that reducing the aide to 2:1 in the ICT classes would reduce his reliance on the aide and make him more independent. The Parent testified that she felt it was important for REDACTED, both socially and emotionally, to be around typical peers in the ICT class. Ms. REDACTED stated that she believed that the program was appropriate because REDACTED would be getting small group instruction with the right supports to succeed. Mr. REDACTED testified that while the REDACTED would be more supportive for REDACTED, the recommended program, with supports, could be successful. (t. 106-13, 117-19, 541-49, 557-59, 1025, 1350, 1353-54, 1574, 1579-80, Ex. 7, 8)
REDACTED started the 6th grade at REDACTED for the 2019-2020 school year. REDACTED is the supervisor of special education at Redacted. As the supervisor of special education, she chairs the CSE meetings for all classified students. She started working with REDACTED when he started at REDACTED and describes him as a student with many strengths and an interest in learning but that he struggled with executive functioning skills, attention in the classroom and needed his program modifications and testing accommodations to be successful. (t. 153, 155)
Dr. REDACTED, the school psychologist at Redacted, performed the Triennial Evaluation on REDACTED administering the Wechsler Intelligence Scale for Children-Fifth Edition (“WISC-V”). It was noted in the evaluation that at the time of testing REDACTED showed a low energy level and signs of inattention, hyperactivity, and impulsivity were observed during the testing. Dr. REDACTED testified that the low level of energy could have impacted his ability to test optimally as would the inattention, hyperactivity, and impulsivity. The inattention is the span of attention he can keep doing tasks that required sustained attention. She found that REDACTED was often getting off track or having the inability to follow through on the task at hand without a lot of redirection and support. It is difficult for REDACTED to maintain concentration, but he can do it with a lot of redirection and prompts. She also noted receptive language (which is what he hears) issues as she had to repeat instructions and remind him of what he was supposed to be doing. REDACTED had slow processing speed evidenced by being very slow during timed sections of the test. Dr. REDACTED stated that REDACTED’s behavior during testing was consistent with reports from other staff. REDACTED’s full scale intelligence quotient (“FSIQ”) was 74, which falls in the very low range.[12] Dr. REDACTED testified that from the testing she learned, overall, that REDACTED’s processing speed is slow so he would need a lot of time to complete tests and take notes, that his working memory, a measure of attention, mental effort, and control, is in the extremely low range. Working memory is a reasoning skill which is needed to be able to hear what is being said and remember the lesson and directions so REDACTED would need a lot of repeating information, have things broken down for him. His overall FSIQ tells her that the weaknesses found in the evaluation will affect all aspects of academics. Dr. REDACTED testified that REDACTED’s attentional issues and executive functioning issues have a significant impact on his struggles in school. Dr. REDACTED found that the results of the Triennial Evaluation were consistent with the findings of the Psychoeducational Evaluation done by the District in 2013, Dr. Redacted’s Neuropsychological Evaluation, a Psychological Reevaluation done by the District in 2016, and Dr. REDACTED’s Comprehensive Neuropsychological Evaluation done in 2017. Dr. REDACTED noted that there were consistent themes across the evaluations which included: issues with expressive and receptive language that impacted his ability to understand information, short attention span and issues with being able to sustain endurance and attention and some issues with motor weakness and slow processing speed. (t. 290-98, 304-12, 313-25, 359, 386-87, Ex. 9, 22, 24, 29, 34, 39)
REDACTED is a speech and language pathologist at Redacted, and she has provided SLT to REDACTED for the 6th, 7th and 8th grades. She describes REDACTED as a great kid, who enjoys making connections particularly with adults and that he likes being connected to the people he works with. He presents as a student with developmental delays in the area of receptive language, comprehension and social language generally. REDACTED has a significant issue with attention, and this limits his ability to progress in his language issues. Ms. REDACTED testified that REDACTED’s difficulty in sustaining attention, even in a small group interferes with his ability to interpret information he is listening to causing him to miss important details which cause gaps in his understanding. In order to address this deficit REDACTED has listening goals to support his ability to improve his attention for listening tasks. Ms. REDACTED testified that she prepares for her 6th grade students by meeting with their 5th grade speech and language therapist and she did this for REDACTED. She stated that the 5th grade SLT, Mr. REDACTED told her that the topic of autism was a sensitive subject with REDACTED’s family and to maintain a positive relationship it would be best to avoid it. In her view, REDACTED showed characteristics of autism. Mr. REDACTED also suggested that while the SLT is written as a 5:1 ratio that it be implemented in a smaller teacher to student ratio because he found that more successful. Ms. REDACTED implemented REDACTED’s 6th grade IEP with SLT 2x per week small group for 30 minutes and worked on the SLT goals. Ms. REDACTED did a revaluation of REDACTED during the 6th grade with the goal of assessing strengths and weaknesses and identify development gaps. She administered the Clinical Evaluation of Language Fundamentals, fifth edition (“CELF-5”) which is a comprehensive speech and language assessment that measures receptive, expressive language and memory. The results of the CELF-5 showed that REDACTED had some strengths in expressive language, but it revealed difficulties with receptive language.[13] The difficulties arise in interpreting, understanding, manipulating, and making inferences based on language-based information. In a classroom this would cause REDACTED to have difficulty following directions, particularly multi-step directions, difficulty with understanding the main idea and concepts particularly in the absence of visual supports. These issues can be addressed by having goals that specifically address auditory comprehension and inferencing and goals for social interaction and social problem solving. Ms. REDACTED testified that the REDACTED would have been the appropriate program, that REDACTED was struggling, and the modifications and supports delivered in that program would have supported REDACTED’s needs as a student better than the program he was in. The Parent refused the recommendation. (t. 396-403, 404-08, 409-13, 420-21, Ex. 8, 41)
REDACTED a special education teacher at REDACTED and teaches special class ELA in the 6th grade and is a certified reading teacher. She taught REDACTED in the 6th grade and was also his case manager Ms. REDACTED described REDACTED as a very caring student who was eager to please and wanted to do well. His academic strengths were in creative writing, decoding, and spelling, and that he was fairly fluent when he read aloud. His biggest issue was comprehension, while he could read the difficulty was understanding what was happening in the text. He had difficulty with formalized writing and attention and stamina were difficult for REDACTED. They tried to provide him with visuals, but he needed a lot of verbal and nonverbal prompts to participate. Ms. REDACTED testified that special class ELA was 15:1 for 1 hour and 22 minutes 5 days a week. Typically, they would have a whole group lesson, small group lessons and time for independent reading or work on an activity. She worked on comprehension for REDACTED by identifying the main idea or theme, retelling, and sequencing and that it was worked on continually. Everything that was read in class was centered on pulling out those key details. This was done through class discussion, written activities or 1:1 activity. Ms. REDACTED used guided reading, reading done at the students independent or instructional level to build comprehension. But also, the class would read more complex texts, she would read to the class and there was discussion and review daily to build a knowledge base and help the students to apply those skills. Ms. REDACTED testified that she did not use a specific methodology but rather balanced literacy, which is a combination of fiction, nonfiction, prose, writing, working to give an exposure to all types of literature. Ms. REDACTED did the Fountas & Pinnell reading assessment but was only able to do it twice because of the pandemic. REDACTED’s initial instructional level was M and in February he was at a level O which showed progress. On 9/16/19 Ms. REDACTED administered the Weschler Individual Achievement Test-3rd Edition (“WIAT-III”) on REDACTED. The WIAT-III is an assessment of reading, writing and math skills. The testing was done over several sessions so that he would remain as engaged as possible and was 1:1 in a quiet setting. Ms. REDACTED testified that the results of the testing showed that reading comprehension was an area of weakness for REDACTED and that decoding, word reading, and spelling were in the average range. She found that sentence composition was also an area of weakness, as well as math and that he had difficulty with word problems and numerical operations. She believes that the WIAT-III is an accurate reflection of REDACTED’s abilities. Ms. REDACTED did not believe that REDACTED would be appropriate for REDACTED because it is focused on encoding and decoding which are areas of strength. Ms. REDACTED had a lot of communication with the Parent over the school year regarding REDACTED’s performance in class and the difficulties that he was having, and several alterations were made to the IEP, so he could be as successful in classes as possible. Ms. REDACTED felt that sustaining attention for any length of time was difficult for REDACTED and he required frequent breaks. She tried to use any accommodation that would keep him more alert and attending. When REDACTED got something in his mind, it was very hard to bring him back to what was happening in class. The inability to maintain attention and focus remained consistent during the 6th grade. Ms. REDACTED testified that REDACTED would have good days and bad days. A good day would be REDACTED participating in class independently and not becoming frustrated or fixated on things. A bad day would be if there would be any change in routine which would be frustrating to him, he would get angry, and it would take a long time for him to recover. During the school year, REDACTED was struggling in the ICT science course and Ms. REDACTED thought that the REDACTED might be a possibility for REDACTED because of the slower pace and smaller size and would offer more supports. She communicated to the Parent about the REDACTED, but the Parent was not interested and wanted to keep REDACTED in more of a mainstream environment. While she thought that the REDACTED would have offered more supports, REDACTED stated that they did their best to support REDACTED every way they could in the least restrictive environment. Resource Room was added to REDACTED’s program in January and as the case Redacted, she had consistent contact with REDACTED the teacher. Ms. REDACTED testified that as the Resource Room teacher, she was supporting REDACTED’s core curriculum in terms of reteaching and review of materials. There were 5 students in Resource Room. REDACTED would come in with his 1:1 aide who was there to assist him with attending and focusing. Ms. REDACTED testified that REDACTED needed the aide because he would get up and try to leave the classroom, play with materials around the room or talk to other students. He was unable to sustain attention independently. She stated that his inability to sustain attention and focus significantly impacted his ability to benefit from instruction. REDACTED was REDACTED’s special math teacher for the 6th grade. Ms. REDACTED testified that there were issues with attention that REDACTED would lose focus on math continually and they would have to pull him back. As time went on, REDACTED became more comfortable in math class. They used many strategies like a multiplication chart, a calculator and repeating. She would break things down into smaller chunks. Ms. REDACTED testified that REDACTED generally did well and had a successful year in math. Ms. REDACTED testified that she believes that overall REDACTED made progress in the 6th grade and that he was proud of his abilities and test scores, he was gaining confidence though the pandemic altered the course of the school year. It is her opinion that REDACTED was prevented from making progress at a greater rate because of the huge impact that his inability to sustain attention had. Ms. REDACTED testified that REDACTED made the honor roll the first semester and was one point away for the second semester (there were no grades due to the pandemic for the remaining semesters). Ms. REDACTED noted that REDACTED had a great deal of support to help him achieve those grades. (t. 579-83, 585-95, 597-99, 603-04, 608-11, 616-620, 647-48, 658-660, 682-88, 838-44, Ex. 8, 17, 38)
A re-evaluation meeting was held on 10/31/19.[14] The meeting was attended by District staff, including Ms. REDACTED, Dr. REDACTED school psychologist, REDACTED special education teacher, REDACTED speech language therapist, the Parent and REDACTED guardian. All the evaluations were reviewed at the meeting except the OT evaluation. Ms. REDACTED did not recall the Parent raising any other concerns at the meeting.[15] Dr. REDACTED presented the triennial evaluation going over the findings, testing observations, how REDACTED has progressed and compare it to prior testing. Dr. REDACTED testified that she did not recall anyone questioning the evaluation or testing accuracy. Ms. REDACTED presented the findings from the CELF-5 at the meeting. She did not recall any disagreements or questions by the Parent at the meeting though she did request additional testing. The Parent expressed concern over REDACTED’s auditory processing asked for an auditory processing evaluation.[16] Ms. REDACTED reviewed the Academic Evaluation and they learned that REDACTED had weaknesses in reading comprehension, math problem solving sentence composition and numerical operations. The Parent testified that she believed that the Academic Achievement Evaluation Report showed regression and that she believed it was the result of there being no interventions put in place by the District to address REDACTED’s dyslexia. The Social History was also reviewed and the purpose of it is to get some background information from the Parent and any updates. The Parent testified that she found the evaluations to be consistent. (t. 158-61, 162-65, 326-27, t. 1361, 1581, Ex. 9, 38, 39, 41)
A requested review was held on 11/8/19 which was the continuation of REDACTED’s re-evaluation meeting. The meeting was attended by District staff, including Ms. REDACTED, REDACTED special education teacher, REDACTED speech language therapist, and the Parent. The Parent signed the consent to have an auditory processing evaluation. The OT reviewed her report and findings, and it was learned that REDACTED demonstrated good fine motor, visual motor and perceptual skills and exhibits deficits in coordination and self-regulation. Read and Write software was added to support REDACTED’s reading and writing weaknesses. In addition, the 2:1 aide time was increased to include not only the ICT classes but band and an elective, home and careers (“HACS”). Ms. REDACTED testified that REDACTED needed the aide to stay engaged and focused on classes. Also, he would take a break and leave the room, without an adult to guide him he would be gone a long time and miss the class which was not helpful. The CSE also discussed working on increasing REDACTED’s flexibility in thinking so that he would be able to adapt to changes and different situations which was an issue. An assistive technology consult was added 3x yearly for 30 minutes to support the use of a Chromebook and learning the software and also added program modifications (copy of class notes, word bank for vocabulary and repeat directions back to staff and check for understanding). Ms. REDACTED did not recall any objection to the goals or program modifications or testing accommodations. (t. 159, 165- 68, 171-75, 190, 610-11, 1361 Ex. 10, 40)
A requested review was held on 1/10/20. The meeting was attended by District staff, including Ms. REDACTED, REDACTED, special education teacher, REDACTED speech language therapist, and the Parent. The purpose of the meeting was to go over the results of the auditory processing evaluation. On 12/4/19 Ms. REDACTED performed the Test of Auditory Processing Skills (“TAPS-3”) on REDACTED. The TAPS-3 is designed to measure auditory processing skills. It is noted that during the evaluation “REDACTED appeared motivated to participate and do well although he required many prompts to establish and maintain attention to task.” It was found that overall REDACTED’s performance was below the average range for his REDACTED but that his attentional difficulties could negatively impact the accuracy of the information that is presented. Ms. REDACTED testified that it is likely that REDACTED’s attention played a significant role in the results of the testing. The CSE discussed the results and considered an FM trainer but rejected that as it had been tried in elementary school and he came to middle school with it and was not successful. Ms. REDACTED testified that she did not notice any difference in his attention with or without the FM trainer. Two listening goals were added to establish and maintain attention to auditory information. There was no opposition to the goals and no follow-up testing was requested. The CSE also added resource room to support the reteaching of concepts and working on other academic goals and adaptive PE based on safety concerns. There was no disagreement to adding resource room or adaptive PE. (t. 179- 182, 422-24, 427-429, 611-16 Ex. 11, 44)
The CSE met for the annual review on 4/30/20 for REDACTED’s 7th grade year. The meeting was attended by District staff, including Ms. REDACTED, REDACTED special education teacher, REDACTED speech language therapist, and the Parent. The CSE team recommended Special Class 15:1 for math and English, ICT for science and social studies, Resource Room 5:1, Adaptive PE and the related services of SLT: small group, OT: small group, counseling: individual and counseling: small group. ESY services were also recommended. The IEP notes that REDACTED’s Lexile level is 180. Ms. REDACTED testified that the Lexile level is a way of measuring reading skills that is based on vocabulary and word knowledge. The complexity of the text indicates how complex the text you can read. At the time the school was using the Scholastic Reading Inventory (“SRI”) which is a computer-based measurement to gather the information. The SRI is administered in a group, but everyone is on their own working independently on a computer and there are no testing accommodations applied. The time it takes to complete varies from student to student, but some students can finish it in 15 minutes others could be up to an hour. The way the program works is if the student reaches a question that is too hard the program drops back down then goes up, drops down REDACTED until it gets to their Lexile level. Ms. REDACTED testified that it would be very difficult for REDACTED to attend to the SRI for 60 minutes which is why she also used the Fountas and Pinnell assessments. REDACTED’s initial SRI was 117 (1st grade) and the later SRI was 180 (end of 1st grade) which showed growth. The special classes in the 7th grade are essentially structured the same way as the 6th grade. The special classes follow the general education curriculum but at a modified pace and scaffolded. The team went through each of the recommended goals for study skills, reading, writing, math, SLT, and social/emotional/behavioral goals. Ms. REDACTED testified that the team discussed REDACTED’s difficulty accessing services through the remote format. REDACTED made slow steady growth, but he did not achieve all his goals as they were proposed. The teachers for each subject, or related service providers recommended the goals for their subject or service. The team also went through the modifications including a 2:1 shared aide, assistive technology, and testing accommodations. Ms. REDACTED testified that there was no disagreement on the goals and no suggestion of additional goals. Ms. REDACTED found the program recommended to be appropriate for the 7th grade school year. Ms. REDACTED felt that it was an appropriate program with as much support as they could give to REDACTED. Ms. REDACTED testified that her opinion remained that REDACTED would have been better supported with more access to the 12:1:1 REDACTED. On 7/27/20 there was an amendment-no meeting to the IEP. Ms. REDACTED, Ms. REDACTED, and the Parent agreed to add a writing goal and 2 daily living skills goals to REDACTED’s IEP. (t. 184-90, 191-92, 432-35, 622-36, 662-65, 670-72, 1594, Ex. 12, 13)
REDACTED was REDACTED’s special education teacher for ELA and his case manager for 7th grade. Ms. REDACTED has a master’s degree in literacy which focused on a balanced literacy approach and developing a student’s reading comprehension skills through a variety of means, reading, writing, listening, and speaking. Ms. REDACTED described REDACTED as a student with creative writing abilities, strengths in decoding and spelling. He has weaknesses in reading comprehension, formal writing and sustaining attention. She described special class English as following the District curriculum but it reduces the pace and provides a highly differentiated and scaffolded instruction to support the students’ reading and writing skills. A typical day would be a class novel read aloud to the class, the students with hard copies to follow along and it was chunked into smaller sections. There would be discussion and scaffolded supports to develop and support reading comprehension skills. Ms. REDACTED described REDACTED as needing support in reading comprehension, he could read the text but was not comprehending what he was reading. He benefitted from the instruction to develop comprehension skills. She describes REDACTED as excellent at creative writing but that he had trouble with formalized writing and needed a lot of scaffolding with specific instructions and guided questions to go back to the text to support his answers. Ms. REDACTED testified that REDACTED benefits from chunking, explicit instruction and scaffolding to build his reading comprehension skills. Ms. REDACTED testified that REDACTED’s issues with attention and focus remained the same throughout the school year though to some extent it increased during COVID because he became very concerned about germs and his health and safety within the classroom. Over course of the school year the District went from fully remote to hybrid (remote and in person learning) to full time in the school. Ms. REDACTED testified that REDACTED was an exception to the hybrid learning and came in every day. Ms. REDACTED was in contact with the resource room teacher as to whether REDACTED needed additional audio or visual supports, a review of vocabulary for an assessment or breakdown and support of a writing assignment. She testified that REDACTED was receiving academic intervention support (“AIS”). AIS is general education support where there would be, for ELA, novel-based discussion that was developing reading comprehension and writing skills. Ms. REDACTED testified that the District piloted an i-Ready assessment during the end of the school year. It is a computer test where the student’s log in and read passages and answer questions independently. The test is taken in the classroom on individual computers. The amount of time it takes varies with the student as the test automatically adjusts the program to grade levels based on the answers and continues until it determines the students’ levels in 6 categories. The students are not allowed testing accommodations when taking the test. REDACTED’s Lexile score (which is a measure of comprehension) was 350 which she believes is significantly below grade level. Ms. REDACTED testified that the fact that REDACTED did well in phonological awareness, phonics, and high-frequency words but not in comprehension was the same as what she observed in the classroom. Ms. REDACTED testified that REDACTED passed all his classes for the 7th grade and with the supports that he received he was making progress. (t. 682, 689-93, 695-97, 710, 712 724-27, 736-38, 740-743 Ex. 12, I)
REDACTED was the resource room teacher for REDACTED for 7th grade. The academic year started off fully remote, then was hybrid and then fully in person. REDACTED came in every day during the hybrid sessions with his 1:1 TA. The purpose of resource room is to provide academic support by reteaching and making sure that the student understands the curriculum. Ms. REDACTED testified that REDACTED struggled with math, and she provided him with visual supports to help him. They spent a lot of time in resource room and sometimes after school giving REDACTED structured step by step instruction in math with visual and verbal clues. They worked on fractions, percent’s and one step equations. REDACTED was better able to attend 1:1 than in a group. They also worked on reading. REDACTED would take 5-7 minute walk breaks in resource room to help him get excess energy out. Ms. REDACTED testified that REDACTED did well in math on his report card and described him as a confident student in the right placement. (t. 857-66, 875, Ex. 17)
The CSE met for a requested review on 10/26/20. The meeting was requested by the Parent. The meeting was attended by District staff, including Ms. REDACTED, Redacted, school psychologist, REDACTED special education teacher, REDACTED speech language therapist, and the Parent, REDACTED attorney for the Parent and REDACTED attorney for the District. The Parent testified that she requested the meeting and had a lawyer present because she was not making any headway with the District. She stated that she had been trying for years to get the District to address REDACTED’s dyslexia with no success. She wanted the District to provide 1:1 SLT and 1:1 instruction in math and ELA. The Parent testified that the CSE denied her requests and recommended that REDACTED be placed in the REDACTED. The CSE recommended increasing REDACTED’s aide support from a 2:1 aide 20 hours a week to a full time 1:1 aide 30 hours a week. The aide would be a TA rather than a paraprofessional. A TA can provide pre-teaching and re-teaching under the supervision of the special education teacher and provide redirection and refocusing when needed and assist in with organization and planning. The basis for the change was that REDACTED needed more support during the school day, he was struggling with completing assignments, needed assistance to remain focused and support with his executive functioning skills. Ms. REDACTED testified that REDACTED needed the 1:1 aide because he needed constant 1:1 prompting, refocusing and redirection to attend and to complete tasks in class. REDACTED’s program, goals, modifications, and accommodations were reviewed. The CSE recommended 12:1:1 ELA based on REDACTED’s low reading scores and that it would better meet his needs. Ms. REDACTED testified that she believed that REDACTED would benefit from the REDACTED as he benefitted from a slower pace and more individualized instruction and higher levels of scaffolding and differentiation. The CSE discussed that the best way to provide instruction to REDACTED was with a smaller student teacher ratio. It was also noted that the 15:1 special class ELA was 41 minutes per day and the 12:1:1 was 82 minutes per day. The benefits of the 12:1:1 was described to the Parent. The Parent was not in disagreement with that recommendation. The Parent’s attorney requested a profile of the students in the 12:1:1 and the 15:1. In addition, an assistive technology evaluation was approved, and assistive technology supports increased. At the time of the meeting, the school was on a hybrid schedule of remote learning and live due to Covid restrictions and students were coming in two days a week on a rotational basis. Approval had been obtained for REDACTED to come into school 4 days a week. Ms. REDACTED testified that the IEP was appropriate and provided the best level of support in the least restrictive environment between the program modifications, accommodations and the classes, AIS supports and resource room. (t. 193-94, 436-38, 694, 701-03 710-11, 729, 1374-76 Ex. U)
The CSE met for a requested review on 3/17/21. The meeting was attended by District staff, including Ms. REDACTED, REDACTED special education teacher and the Parent. The purpose of the meeting was to review the Assistive Technology Evaluation and to create a COVID-19 safety plan with a mask exemption. The Assistive Technology Evaluation was reviewed. Ms. REDACTED testified that a lot of what was recommended was already in place, but the CSE recommended assistive technology including, but not limited to, a touch screen Chromebook and utilizing the support of close captioning during Google meets providing him with both auditory and visual input. The Parent provided a doctor’s note requesting mask breaks for REDACTED. Among other diagnosis the doctor diagnosed REDACTED with Autism Spectrum Disorder, Level 1. The mask exemption was granted. (t. 199-204, Ex. 14, 43, C)
The Parent testified that she spoke to REDACTED about how he was doing in school. She stated that REDACTED was aware that he did not understand or perform as well as some other kids in school and was concerned that he would not be ready for 8th grade or high school. The Parent testified that she wanted to get more information about REDACTED’s reading and comprehension issues. The Parent was referred by her attorney Redacted, to Redacted, a retired teacher who provides tutoring and evaluations.[17] The Parent took REDACTED to be evaluated by Ms. REDACTED. Ms. REDACTED evaluated REDACTED on 3/20/21 and 3/27/21. Prior to evaluating REDACTED, she had discussions with the Parent and had the Parent fill out a dyslexia questionnaire to get an idea of what she was observing. The Parent advised Ms. REDACTED that REDACTED avoids reading and that his focus was characterized as “[having] trouble concentrating; wears out before task is done; loses his place on REDACTED…” She first met REDACTED on the date of the first evaluation. Ms. REDACTED did not review any other evaluations, IEP’s or other records related to REDACTED. She did not observe REDACTED in school, nor did she speak to any of his teachers. The purpose of the evaluation was to evaluate REDACTED’s skills in reading, phonological processing and identify weaknesses. In the evaluation, Ms. REDACTED describes REDACTED during the Gray Oral Reading Test-5 (“GORT”) “A remained focused on the task of reading and answering comprehension questions throughout the assessment. He was alert, responsive, engaged, and cooperative.” REDACTED was described similarly during the Comprehensive Test of Phonological Processing (“CTOPP-2”). Ms. REDACTED testified that generally it takes 20 to 30 minutes to administer the GORT but does not know how long it took REDACTED to complete. She testified that REDACTED remained focused and alert during the testing. The CTOPP-2 took between 30 to 60 minutes and during that time she had to redirect REDACTED4 times. Ms. REDACTED testified that on other testing the need for redirection was similar to the GORT and CTOPP-2. Ms. REDACTED stated that she was not aware of anyone stating that REDACTED’s attention and stamina were substantial factors limiting the ability to effectively teach him. She believed his tutors in the summer did not have a problem with redirecting REDACTED. She testified that REDACTED becomes quickly engaged in her setting because her focus is 100% on him. She found after evaluating REDACTED, that he was weak in reading comprehension, letter sounds knowledge, written expression, and logical sentences. Overall, his reading was very poor. Ms. REDACTED testified that REDACTED’s comprehension is equivalent to that of a 6 year old (1st grade level) and at the time of testing he was 13 and in the 7th grade. She noted that is a problem because the purpose of reading is to derive meaning from the printed word. Ms. REDACTED testified that based on her evaluation she concluded that REDACTED was making very little progress in reading. Ms. REDACTED started giving REDACTED reading instruction on 6/2/21. She met with REDACTED once or twice a week in the summer, and it was 50% virtual and 50% in person due to COVID. Ms. REDACTED testified that when she first started working with REDACTED, she had to refocus and redirect him quite a bit, but the attention issue did not last very long. Further, she testified that the need to refocus and redirect REDACTED did not interfere with her ability to provide instruction. Ms. REDACTED did a follow-up evaluation on 12/12/21, 12/28/21 and 1/16/22. She found that the types of weaknesses that REDACTED had were being addressed and so there was progress. She found that REDACTED went from very poor in comprehension to the poor range in the re-evaluation, going from reading years 3 months to 7 years 9 months or from 1st grade to 2nd grade. She noted that while not acceptable in terms of his reading it shows that he can make progress and that he made progress across the board from the first evaluation to the re-evaluation. She testified that in other areas his scores were variable, and, in some cases, she concedes he showed regression. She states that her approach to dyslexia is working and that the types of services that she provided is highly specialized and it is what he has needed since the 3rd grade.[18] Ms. REDACTED recommends that REDACTED receive Orten-Gillingham, a program that is multisensory and has a structured literacy approach.[19] (t. 1061-71, 1072-75, 1080-90, 1221-26, 1236-38, 1240-41, 1252-57, 1268-72, 1275-76, 1286-88, 1296-99 1378-81, Ex. 45, R, BB)
The CSE met for an annual review on 6/2/21. The meeting was attended by District staff, including Ms. REDACTED, REDACTED special education teacher, REDACTED speech language therapist, and the Parent and REDACTED. Ms. REDACTED testified that this was a positive meeting with staff members talking about the progress that AT was making and that he benefits from the supports that he is receiving. The 1:1 TA was discussed, and the consensus was that it was working out well. The TA’s role had been clearly defined and that played a role in the progress that REDACTED was making. It was noted by the science teacher that REDACTED relies on the continuous support from the TA to stay focus and benefits from redirection. Both REDACTED and the Parent were participating in the AT consults. AT was receiving both 1:1 and group SLT and making progress. The evaluation by Ms. REDACTED was reviewed by the CSE and that the information contained in the report was what they already knew about REDACTED’s strengths and weaknesses. Ms. REDACTED testified that they were aware that REDACTED was receiving tutoring from Ms. REDACTED. The Parent testified that she felt the evaluation was consistent with what the District found. The goals, accommodations and modifications were recommended and reviewed and there were no objections raised. The CSE recommended special class 15:1 for English and math, ICT for science and social studies, resource room 5:1, Adaptive PE, SLT 1:1 and small group 4:1, OT small group 2:1 and counseling 1:1 and small group. In addition, ESY was recommended, special class 12:1+1 and special class (reading) 5:1. The reading program was multi-sensory. The Parent asked if the reading would be taught by someone with Orten-Gillingham training. Ms. REDACTED testified that they do not subscribe to any one methodology, but she told her she would check to see if anyone in the District was certified in Orten-Gillingham. The purpose was to support him in reading, writing and math. Ms. REDACTED believed the program was appropriate. (t. 205-14, 216-18, 713-22, 444-48, 13882-83, 1628-48, Ex. 15)
The Parent chose not to send REDACTED to the ESY services for the summer of 2021. The Parent sent a ten-day letter to Ms. REDACTED advising that she was rejecting the ESY services and unilaterally enrolling REDACTED in a private school, at public expense effective 6/28/21. The Parent testified that the ESY services being offered were not addressing the reading comprehension issues and dyslexia, the program was not individual, and the teacher was REDACTED certified. REDACTED had participated in the District ESY program in the summer of 2020 and there was no specific methodology for ELA and math, and she did not see any progress, though the District reported progress. The Parent stated that REDACTED had already had REDACTED and it was not helpful for him. The Parent enrolled REDACTED in REDACTED which she described as a school for children with dyslexia and language-based disorders. The Parent testified that she was trying to find a program that was specifically for dyslexia. REDACTED was going to provide two sessions, the first session would cover ELA and math 4x per week for 45 minutes each, and the second session would be math 4x per week for 45 minutes. The Parent testified that when she was inquiring about the summer program at REDACTED, she was told that they had some Orten-Gillingham trained instructors. REDACTED would also continue working with Ms. REDACTED. REDACTED was a speech language pathologist who provided ELA instruction. The Parent testified that she was aware that Ms. REDACTED was not a special education teacher and was not aware whether she was trained in Orten-Gillingham. She had a long conversation with Ms. REDACTED and felt that based on her experience working with people with disabilities and passion for the work, she would be good and effective with REDACTED but that ultimately, she was not happy with Ms. REDACTED and her ability to work with REDACTED and did not think she was effective. She had initially scheduled two sessions of ELA and one session of math but switched it so there would be two sessions of math. The math tutor was REDACTED who testified that he had limited teaching experience, is not a certified teacher and REDACTED does not require certification to teach there. Mr. REDACTED testified that he started teaching at REDACTED in November 2020. He stated that as far as he knew REDACTED did not do any evaluations to determine REDACTED’s functioning levels and he was not provided with any evaluations to review. He had to determine for himself REDACTED’s strengths and weaknesses. He worked remotely with REDACTED and originally thought they would start with fractions, decimals, and percent’s but once they started, he found that REDACTED needed practice with basic arithmetic, so they spent 2 weeks working on addition, subtraction, multiplication, and division. Mr. REDACTED stated that he noticed by the second day that REDACTED had to struggle to sustain focus and his processing speed was limited and it was difficult to managed because he would get anxious if he moved along too quickly. He realized that REDACTED’s attentional capacity was more severely limited than many students who struggle in the same way. He characterized REDACTED’s struggle to maintain focus as extreme. Mr. REDACTED testified that he was successful in redirecting REDACTED around 33% of the time. Mr. REDACTED stated that REDACTED made progress and as the sessions went on, he showed improvement in focus though it remained an issue. The progress report by Mr. REDACTED shows an “A” grade which he stated was an “A” for effort. (t. 1105-07, 1112-14, 1117, 1125-28, 1135, 1434-39, 1440-48,1450-54, 1664-71 Ex. E, F, OO)
REDACTED testified that she is REDACTED’s 8th grade special class English teacher and his case Redacted. The class is a 15:1 which has 7 students in it, and they will break into small groups. She describes REDACTED as very energetic and social, particularly with herself, the TA and a few students in the class. She describes his attention as an issue, and he needs to be prompted and redirected to remain Redacted. When REDACTED he is REDACTED to learn but he is easily distracted often by his own thoughts. Several times throughout the class he must be redirected by herself or the 1:1 TA. His stamina and ability to stay on task impact his progress. She testified that he would work productively for a short time before he needs to be redirected. Ms. REDACTED testified that as his teacher and case Redacted. she is implementing his IEP. In special class English she teaches the 8th grade curriculum, but it is modified to meet the needs of the students. When they are reading a book either she will read or a student will volunteer, or they will read independently. Frequently, they stop reading text to review, show visuals or videos to support the text to give them various ways to access the text. They also are given graphic organizers for writing assignments and the writing assignments are also modified. REDACTED will frequently volunteer to read aloud in class and does a good job. REDACTED’s biggest need is in reading comprehension, in longer text he will struggle to recall information and comprehend even if they do daily review, stop, recall and review several times throughout the period. The text is frequently broken down into smaller pieces that are easier to comprehend, and visuals are provided. Even with the modifications Ms. REDACTED testified that the biggest problems for REDACTED are his ability to stay on task, his lack of stamina, and his struggle to recall the necessary information to fully comprehend the text. She and his 1:1 TA often check in with him for understanding. His TA prompts and redirects REDACTED when needed and will implement his modifications. Ms. REDACTED testified that it is easier for REDACTED to sustain attention when working with him 1:1. Ms. REDACTED is familiar with both Orten-Gillingham and REDACTED, and she does not feel that he needs that type of program because his weaknesses has more to do with comprehension. Ms. REDACTED believes that his IEP is appropriate and that his special class programs with the modifications and accommodations provide the support he needs with the modified curriculum to help him to be successful. (t. 785-88, 789-96, 798-800, 803-04, 807, 819, Ex. 15, H, X)
REDACTED is REDACTED’s 8th grade special class math teacher. She describes REDACTED as pleasant, wants to engage and interact with his teachers. He tries his hardest in class but requires redirection and refocusing consistently throughout class. REDACTED has a 1:1 TA that he relies on throughout class and overall, he participates and wants to do well. They follow the state 8th grade math curriculum which is modified by chunking materials and breaking things down. REDACTED requires questions being given one at a time, reteaching materials, regular and consistent refocus and redirection throughout the lesson to keep him on track and the use of a calculator. Ms. REDACTED is implementing REDACTED’s IEP in special class math. There is a regular need to refocus REDACTED in the classroom. She is in communication with the resource room teacher if there are assignments that need to be completed. A typical day in the class starts with a starter activity to reinforce what they did the day before, then they move on to a new topic or a new practice and then they move on to a closure activity. REDACTED is doing well in the class; they are moving at a pace that REDACTED is comfortable with, and he received an 84 on his report card. The grades are assigned using quiz, test grades, projects done in class, participation and in class projects. Ms. REDACTED testified that the grade he received reflects how he is doing in class and that with his accommodations and modifications he can reach grade level material. REDACTED was given an i-Ready assessment on 9/28/21 which put at him at a K-2 level for basic operations, but she notes that he was not allowed his testing accommodations. With those accommodations he can overcome his math deficits and move into higher levels of math. She testified that she believes that the IEP is appropriate as it relates to math and that the resources that he is given with the accommodations and modifications make it possible for him to be successful. (t. 915-22, 932, 960-61, Ex. 15, J, X)
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.
2018-2019 School Year
I find that based on the testimony and evidence adduced at the hearing that the District provided REDACTED with FAPE for the 2018-2019 school year and that the IEP and program recommended was reasonably calculated to confer an educational benefit to REDACTED.
2019-2020 School Year
I find that based on the testimony and evidence adduced at the hearing that the District provided REDACTED with FAPE for the 2019-2020 school year and that the IEP and program recommended was reasonably calculated to confer an educational benefit to REDACTED.
2020-2021 School Year
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.
2021-2022 School Year
I find that based on the testimony and evidence adduced at the hearing that the District provided REDACTED with FAPE for the 2021-2022 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 (5th Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially “everything that might 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 that an essential goal of an IEP is to set out a plan for pursing 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.” In November of 2017 a Comprehensive Neurodevelopmental Evaluation, as an IEE, was administered by Dr. REDACTED. The IEE found that REDACTED had significant issues with attention and that a lot of redirection was needed to engage REDACTED in tasks but even with that some tasks had to be modified or abandoned. This led to a REDACTED at that the findings might be an underestimate of REDACTED’s abilities. The IEE made several diagnosis among them Dyslexia. The CSE met on 1/18/18 and reviewed the IEE by Dr. REDACTED. Ms. REDACTED found that the evaluation confirmed some of the things that REDACTED needed in his program and confirmed what they already knew about him such as his difficulties sustaining focus and attention. The Committee made several recommendations among them access to speech-to-text software, access to a computer, and Bookshare to help him with reading and writing. In addition, the recommendation was made to give REDACTED the WIST or WADE to see if he would benefit from the REDACTED program.[20] The District did not believe that REDACTED presented as a student with dyslexia based on his strong decoding and encoding skills and believed that his difficulty was with comprehension and his significant issues with focus and attention. The District position on whether or not REDACTED was a student with dyslexia did not change over the multiple school years at issue. Over the course of four school years with multiple teachers it remained consistent that they believed that at the root of REDACTED’s issues with academics were his significant problems with sustaining attention and focus, in addition to his other deficits, which contributed to his issues with comprehension. Dr. REDACTED found that cognitively REDACTED was in the below
Average range, had significant language skills problems, diagnosed him with ADHD, that his attention fell in the impaired range, had a significant perceptual-motor disorder, a reading disorder, and difficulties in math. He noted in his 2014 report that REDACTED’s “…attentional deficits are reducing his ability to learn and profit from remediation.” Several years later Dr. REDACTED noted in his 2017 report that “…REDACTED’s inability to sustain focus for more than a few minutes significantly undermined his performance across tasks, even when items were not otherwise challenging for him.” In 2019 Dr. REDACTED performed the Triennial Evaluation of REDACTED and found that his FSIQ was 74, in the very low range and that his attentional issues and executive functioning issues have a significant impact on his struggles in school. She also found her findings consistent with the four prior evaluations going back to 2013. Dr. REDACTED noted that there were consistent themes across the evaluations which included: issues with expressive and receptive language that impacted his ability to understand information, short attention span and issues with being able to sustain endurance and attention and some issues with motor weakness and slow processing speed. The testimony of all the District staff, the Parent and Mr. REDACTED, and the evaluations by Dr. REDACTED and Dr. REDACTED, was that REDACTED’s issues with attention and focus had a significant impact on his academic performance as well as his other diagnosis.
The District is not obligated to adopt the finding 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 issue of whether REDACTED is dyslexic is also a consistent theme over the 4 school years at issue. Dr. REDACTED made the diagnosis and the District disagreed with it. Dr. REDACTED made recommendations including a multi-sensory reading program with a reading specialist. 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.” The reasoning of the District, over the course of the four school years, as to whether REDACTED was dyslexic was based on teaching and working with REDACTED and their professional expertise. The testimony of the District staff, over the four schools years at issue, was that they recognized REDACTED’s issues with reading but did not find him to present as dyslexic because of his strengths in decoding and encoding and that it was a lack of comprehension and his significant issues with attention and focus as well as other diagnosis. The Parent advocated for Orten-Gillingham services for the four years at issue. The District is not obliged to provide any particular methodology or program. The District did provide REDACTED the 5th grade to REDACTED. Mr. REDACTED, a certified REDACTED practitioner, testified that REDACTED is a program for students and adults with dyslexia, as well as for struggling readers, which focuses on decoding. He worked with REDACTED using REDACTED but supplemented the program with comprehension work because in his opinion comprehension is what was holding REDACTED back, not decoding. Mr. REDACTED did not recommend that REDACTED continue with REDACTED in the 6th grade because of its focus on decoding rather than comprehension. The teachers in middle school worked with REDACTED using a variety of methods to aide in his reading comprehension which included balanced literacy, multi-sensory and visual methods as well as redirecting and refocusing when necessary. The concept of Orten-Gillingham appears to have become something of a talisman to the Parent, something that would produce miraculous changes in REDACTED. However, there is nothing in the record to support a finding that if only the District acknowledged the dyslexia diagnosis and provided Orten-Gillingham that REDACTED would have been more successful. I find that REDACTED is not simply a dyslexic child. Rather, he is a child with a very low cognitive functioning level, with commensurate academic functioning and expressive, receptive, and REDACTED language functioning levels, as well as significant memory deficits whose academic progress was consistently impeded by significant longstanding attentional deficits as well as deficits with respect to stamina.[21] I find that the District over the course of the four school years at issue, provided REDACTED with a program that was reasonably calculated to enable REDACTED to make progress appropriate in light of his circumstances The question of whether REDACTED was autistic was another issue that ran through the four school years at issue. The District believed that he was on the autism spectrum, the Parent did not and from the testimony, of the District, she did not like to discuss it. The Parent testified that both Dr. REDACTED and Dr. REDACTED told her that REDACTED met four out of the five criteria for autism but that he did not meet the fifth in that he was interested and engaged in the doctors leading them to believe he was not on the spectrum. Ultimately, there was a diagnosis in 2021 by Dr. REDACTED of autism spectrum disorder, level 1. The Parent asserts in the due process complaint the District failed to assess REDACTED in all suspected areas of disability and cites the diagnosis of autism asserting that there was no testing done by the District or consideration of the impact this new diagnosis would have on REDACTED’s education. I find the Parent disingenuous. The testimony of the District reveals that it was generally believed that REDACTED was on the autism spectrum and there is no indication that such a diagnosis would have changed his programming. He was receiving the necessary modifications and accommodations and his goals reflected his needs and deficits as understood by the CSE team. There is nothing to suggest that the District, in this instance, would need an evaluation especially in view of the diagnosis of REDACTED’s physician. As to other evaluations, the record shows that when the Parent requested evaluations to be done, for various reasons, the District complied. There is nothing in the record to support a finding that the District failed to assess REDACTED in all areas of suspected disability.
The CSE met approximately 15 times for IEP meetings during the four school years. The record reflects that at each meeting the District and the Parent fully participated in crafting the IEP at issue. The Parent asserts in the due process complaint that the IEP’s failed to reflect the results of REDACTED’s evaluations or identify his needs accurately and that the District failed to write annual goals that were specific and meaningful. There is nothing in the record to support that position. The testimony supports a finding that goals were reviewed at the meetings when proposed and further reviewed at subsequent meetings. Each member of the CSE, including the Parent, had the opportunity to discuss the goals, ask questions or object. The Parent had the opportunity to suggest goals, which she did several times. The goals were tailored to meet REDACTED’s needs and promote progress. It is undisputed that REDACTED was significantly below grade level in reading, writing and math, particularly on standardized testing where his testing accommodations were not available, but the testimony of the teachers and evidence show that REDACTED was making progress, albeit slowly. Ms. REDACTED testified that in her opinion, REDACTED was prevented from making progress at a greater rate because of the huge impact that his inability to sustain attention had. REDACTED made good grades on his report cards but as Ms. REDACTED testified, he had a great deal of support to help him achieve those grades. This opinion was repeated by the various teachers, school psychologists and SLT in various forms through testimony. The record reflects that the District was very attuned to REDACTED’s needs and worked to provide goals, modifications and testing accommodations to support REDACTED’s learning and attentional difficulties. REDACTED had a 1:1 aide in the 5th grade to help with his attentional issues to refocus and redirect him as necessary. The CSE showed flexibility in crafting IEPs to address REDACTED’s unique needs. During the CSE annual review for the 6th grade the determination was made reduce the 1:1 aide to a 2:1 shared aide and further reduce the use of the aide by making the 2:1 aide available only for the ICT classes. The Parent wanted to eliminate the need for an aide, but the CSE determined that the support was necessary and recommended the 2:1 aide. The reasoning for the reduction to a 2:1 shared aide with reduced hours was to fade back the use of the aide and foster independence. It soon became clear that REDACTED needed the 2:1 aide in electives as well as the ICT class so the role was expanded. By the time the 7th grade IEP was being crafted it became clear that REDACTED required a 1:1 TA to help refocus and redirect as well as to pre-teach and re-teach under the supervision of the special education teacher across his entire school day which was recommended and put into place.
REDACTED was in a hybrid program in the 4th and 5th grade of an 8:1:1 class for ELA and math and ICT classes for science and social studies as well as related services, a 1:1 aide and ESY. It is undisputed that the Parent wanted REDACTED to be in as much of a mainstream setting as possible so that he could interact with typically developing peers and build the capacity to learn in a larger setting. Ms. REDACTED testified that she believed that the setting, for the 5th grade was appropriate because the IEP would support him, through the modifications and accommodations, in the special class and the larger ICT classes and allow REDACTED to continue to make progress. REDACTED was entering middle school for the 2019-2020 school year and the CSE met for his annual review on 1/10/19. The recommendation of the CSE was for the REDACTED12:1+1 for English, math, social studies, and science. Also related services of SLT, OT and counseling. The REDACTED is the middle school companion program to the REDACTED Program (8:1:1 special class) at REDACTED. The Parent expressed reservations about the REDACTED and testified that she did not have an adequate explanation about why the REDACTED would be an appropriate placement for REDACTED and specifically how it would address his reading comprehension and math issues. The CSE meeting was rescheduled to give the Parent time to visit the programs discussed and consider the options. There was, according to Ms. REDACTED, a great deal of discussion among the CSE, including the Parent, as to what the best program would be for REDACTED going into middle school. Ms. REDACTED felt that the 4th and 5th grade programs that REDACTED had had been very successful for him and they were trying to find the right program to mirror that success. It was determined that the Parent was not in REDACTED with the self-contained REDACTED and it would be best to move on and consider what would be the most supportive options in a more mainstream setting. The CSE ultimately recommended a 15:1 special class for ELA and math and ICT classes for social studies and science. Mr. REDACTED testified that while he felt that the REDACTED would be more supportive for REDACTED, the recommended program with supports could be successful. The feeling was that if the program recommendation needed to be adjusted the CSE in middle school would do so. There was discussion in middle school at a CSE meeting about REDACTED going into the REDACTED as a more supportive environment. The Parent was not in favor of that change. On 10/26/20, at a CSE meeting the recommendation was made for the REDACTED, the Parent wanted the District to provide 1:1 SLT and 1:1 instruction in math and ELA. Ultimately, REDACTED remained in his hybrid program of 15:1 special class for ELA and math and ICT for social studies and science with the addition of a 1:1 TA. The CSE continued the hybrid program for the 8th grade school year. While it is undisputed that REDACTED continued to be significantly below grade level in reading, writing and math he was continuing to make progress and was doing well in his classes with the support of his 1:1 TA, modifications, and accommodations. The CSE recommended ESY services for each school year. The Parent was advised that the ESY program is to address regression, not for new instruction. The Parent declined the ESY services for all but one school year, instead enrolling REDACTED is several different programs.
The IDEA requires that a students recommended program must be in the least restrictive environment (“LRE”) as set forth in 20 U.S.C. §1412 (a)(5)(A); 34 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.6(a)(1). An LRE is “one that, to the greatest extent possible, satisfactorily educates disabled children to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled.” Carlisle Area Sch. v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995). The “tension between the IDEA’s goal of providing an education suited to a student’s particular needs and its goal of educating that student with his non-disabled peers as much as circumstances allow” dictates a “case-by-case analysis in reviewing whether both of those goals have been optimally accommodated under particular circumstances.” P. v. Newington Bd. Of Educa., 546 F.3d 111, 119 (2d Cir. 2008) (internal marks and citations omitted.) The Second Circuit uses a two-pronged test to determine whether a school district has met the LRE mandate. First the Court inquires whether the student can “be satisfactorily educated in the regular classroom using supplemental aids and services.” P. v. Newington, supra at 121. The Court considers “(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students.” Id. at 120. If the program in question does recommend the student be placed into a special education class or classes, the Court then considers “whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.” P. v. Newington, supra, at 120 as cited M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F. 3d 131, 145 (2d Cir. 2013) (internal quotations omitted). “Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent to the student’s needs…” TM ex rel AM v. Cornwall Cent. School Dist., 752 F. 3d 145 (2d Cir. 2014) The ultimate goal, as the Supreme Court noted, is the development of a program "with an eye toward progress in the general education curriculum.” Endrew F., 580 U.S. at ___, 137 S.Ct. at 1000, citing 20 U.S.C. §1414(d)(1)(A)(i)(IV)(bb). I find that each of the IEP’s at issue have provided REDACTED with comprehensive, thoughtful education programs that were reasonably calculated to meet his unique needs in the least restrictive environment. I find that the CSE meetings over the four years at issue were focused on crafting programs for REDACTED that would allow him to make progress. The fact that there were disagreements is not unusual. While the District believed that the more supportive program would be best for REDACTED in the 6th grade they worked with the Parent, in the face of her opposition to the REDACTED. They did not throw up their hands and place REDACTED in all ICT classes with no aide support. As Ms. REDACTED testified, they concentrated on finding a program with supports in a more mainstream setting in which REDACTED could succeed and that she saw the benefits of REDACTED being in an ICT class with typical peers in a larger setting. I do find it puzzling that the Parent rejected more supportive classes and the support of an aide in favor of more mainstream opportunities and yet asserts in the due process complaint that services were not intensive enough and seeks modification of the 2021-2022 IEP to replace the 15:1 ELA class with 1:1 ELA and additional 1:1 services. This request is rejected. I find that the record supports a finding that the CSE met frequently to review the program and add appropriate goals, supports, services, modifications, and accommodations as necessary and that the District collaborated with the Parent in the CSE meetings to craft programs that were reasonably calculated to meet REDACTED’s needs and make progress, in the least restrictive environment over the four school years at issue.
The Parent had REDACTED evaluated on two occasions by Ms. REDACTED. The record suggests that her focus and findings were geared towards the hearing and that shaped her evaluation reports and testimony on REDACTED’s success with her tutoring. It is clear from her testimony that the evaluations were prepared for the purposes of litigation and that she was aware that she would be testifying. That is made clear from the testimony and evidence which revealed that her draft evaluation was reviewed by the Parent and her attorney prior to being finalized. I found Ms. REDACTED was evasive on this point and at one point she blamed her faulty memory on “some very difficult health problems.” (t. 1247) The second evaluation was done while the instant hearing was proceeding. Every other witness and evaluation noted REDACTED’s significant and ongoing issues with attention. Ms. REDACTED found his attention was a minor problem which she was able to overcome. Her testimony and findings regarding the significance of REDACTED’s attentional issues and behavior during testing are such outliers as to be suspect. Her findings in the evaluation are not outside the norm but her description of REDACTED’s behavior during testing certainly is. I do not credit the testimony or findings of Ms. REDACTED.
The Parent asserts in the due process complaint that the 6/2/21 CSE meeting was held without a mandated member, a school psychologist. The State Review Office (“SRO) 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). A review of the IEP for the 6/2/21 CSE meeting reveals that a school psychologist was not present at the meeting. However, the record does not support a finding that the lack of the school psychologist at this meeting 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.
The Parent asserts in the due process complaint that the District discriminated against REDACTED by acting with deliberate indifference in failing to design his IEP’s to meet his unique needs as adequately as the needs of non-disabled students are met. There is nothing in the record to support this allegation. In fact, the record supports a finding that the District collaborated with the Parent in the CSE meetings to craft programs that were reasonably calculated to meet REDACTED’s needs and make progress, in the least restrictive environment over the four school years at issue.
I find the testimony of the District’s witnesses and evidence submitted credible. I find that the IEP’s developed and programs recommended for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years were reasonably calculated to confer an educational benefit on REDACTED and met his unique needs.
Reimbursement for Reading Instruction/Tutoring The Parent seeks reimbursement for reading instruction/tutoring from 3/15/19 through 6/26/21 for a total of $8,950. There was no testimony or progress reports offered from the tutor. As such the Parent has failed to establish that any progress was attributable to the tutor and not the District. Further, there was no testimony that the tutor met the student’s unique needs. The request for reimbursement is denied.
Request for Compensatory Education The request for compensatory education is denied as the District provided FAPE for the four school years at issue.
Reimbursement of Neurofeedback Therapy Lessons The request for reimbursement of neurofeedback therapy lessons was withdrawn on the record by the Parent on 2/28/22.
Request for a Speech/Language IEE
As a remedy the Parents seek a Speech/Language IEE. During the hearing, the parties were reminded that they must address all issues, and relief requested, as set forth in the due process complaint or they will be deemed abandoned. (t. 29, 279, 514-15, 779, 896, 1193, 1421, 1627). The Parent did not address the request for a Speech/Language IEE during the hearing and therefore that request is deemed abandoned.
Reimbursement for Reading Evaluation The request for reimbursement of the reading evaluation, of 3/21 by Ms. REDACTED is denied. I found that the evaluation was done for the purpose of litigation and not for a solely educational purpose as set forth above. As such the evaluation and her testimony was found not credible.
Prong 2
Though I found the District provided FAPE for the school years 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’” REDACTED v REDACTED 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 a summer program at REDACTED. The CSE had recommended ESY services for the summer of 2021 which the Parent did not find appropriate. The summer program at REDACTED was to consist of one 4 week session of ELA and math at 45 minutes per day each, 4 days a week and a second 4 week session of ELA. The sessions were remote instruction. The Parent testified that while she was told that REDACTED had Orten-Gillingham trained instructors the ELA instructor, Ms. REDACTED was a speech language pathologist not a special education teacher. The Parent testified that she did not know if Ms. REDACTED was trained in Orten-Gillingham but it seems unlikely. The Parent was aware that Ms. REDACTED was not a teacher but thought she would be good because of her experience in working with people with disabilities and her passion for such work. The Parent testified that she was not happy with Ms. REDACTED work with REDACTED and did not find her effective. The second session of ELA was canceled and replaced with a second session of math. The math sessions were taught by Mr. REDACTED who testified that he had minimal teaching experience, is not a certified teacher and started teaching at REDACTED in November 2020. Mr. REDACTED testified that neither he, nor REDACTED did any evaluations or assessments to gauge REDACTED’s math level or progress made. The progress reports (for both math & ELA) report a Grade of A. Mr. REDACTED testified that it was an “A” for effort. I do not find that the unilateral placement was appropriate. There is nothing in the record to support a finding that it provided an education specifically designed to meet REDACTED’s unique needs. In fact, the Parent was dissatisfied with the ELA instruction. Further, there is nothing in the record to support a finding that REDACTED benefitted from the instruction.
Prong 3
Though I found the District provided FAPE for the school years at issue I will address Prong 3.
The third prong of the test for tuition funding is whether the equities favor the Parent’s position or the District. The Parent appeared at all CSE meetings and was actively involved in the process. Testimony from District witnesses revealed that the Parent was actively involved in REDACTED’s education. I find that the equities are evenly split between the parties for this purpose.
ORDER
In view of the foregoing, I find that the District provided FAPE to REDACTED for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years. The Parents request for reimbursement for reading instruction/tutoring is denied; the request for compensatory education is denied; the request for a Speech/Language IEE is deemed abandoned; the request for reimbursement for a reading evaluation is denied.[22]
Therefore, it is hereby ordered that the Parents due process complaint for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years is dismissed.
Dated: June 24, 2022
___________________________________
REDACTED
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 NOVEMBER 8, 2021
1.
Amended Due Process Complaint, dated 8/30/21, 21 REDACTED
District
2.
IEP, dated 4/20/17 & 6/8/17, 14 REDACTED
District
3.
IEP, dated 1/18/18, 15 REDACTED
District
4.
IEP, dated 4/5/18, 14 REDACTED
District
5.
IEP, dated 10/2/18, 15 REDACTED
District
6.
IEP, dated 1/10/19, 14 REDACTED
District
7.
IEP, dated 5/9/19, 15 REDACTED
District
8.
IEP, dated 5/9/19, 13 REDACTED
District
9.
IEP summary form, dated 10/31/19, 3 REDACTED
District
10.
IEP, dated 11/8/19, 15 REDACTED
District
11.
IEP, dated 1/10/20, 17 REDACTED
District
12.
IEP, dated 4/30/20, 17 REDACTED
District
13.
IEP, dated 7/27/20, 17 REDACTED
District
14.
IEP, dated 3/17/20, 19 REDACTED
District
15.
IEP, dated 6/2/21, 20 REDACTED
District
16.
Progress Report on IEP Goals, 2017-2018, 29 REDACTED
District
17.
Report Cards for Grade 4-7, 10 REDACTED
District
18.
Speech Language Pathology Evaluation, dated 5/16/13, 7 REDACTED
District
19.
Classroom Observation, dated 10-24-10/25/13, 1 REDACTED
District
20.
Social Health History, dated 11/7/13, 3 REDACTED
District
21.
Speech Language Evaluation, dated 11/14/13 (6 REDACTED)
District
22.
Psychoeducational Evaluation, dated 11/13/13 & 11/15/13, 5 REDACTED
District
23.
Vineland II, dated 11/20/13, 22 REDACTED
District
24.
Neuropsychological Evaluation, 12/2/13-1/29/14, 14 REDACTED
District
25.
PT Re-evaluation, dated 5/16/14, 3 REDACTED
District
26.
Academic Evaluation, dated 3/31/15, 2 REDACTED
District
27.
Occupational Therapy Annual Report, dated 2/29/16, 1 REDACTED
District
28.
Speech Language Evaluation, dated 10/14/16, 8 REDACTED
District
29.
Psychological Re-evaluation, dated 10/18/16, 9 REDACTED
District
30.
OT Re-evaluation, dated 10/28/16, 3 REDACTED
District
31.
WIAT-III, dated 11/1/16, 2 REDACTED
District
32.
AT Evaluation, dated 3/22/17, 8 REDACTED
District
33.
2017 ESY Progress Reports, 4 REDACTED
District
34.
Neuropsychological, dated 11/7-11/8/17, 58 REDACTED
District
35.
Annual Review Counseling Summary, dated 1/2/19, 2 REDACTED
District
36.
Speech & Language Annual Review Update, dated 1/4/19, 1 REDACTED
District
37.
Occupational Therapy Annual Report, dated 1/10/19, 1 REDACTED
District
38.
Academic Report, dated 9/16/19, 5 REDACTED
District
39.
Triennial Evaluation, dated 10/4/19, 23 REDACTED
District
40.
OT Evaluation, dated 10/10/19, 4 REDACTED
District
41.
Speech Language Evaluation, dated 10/14/19, 3 REDACTED
District
42.
Social History Update, dated 10/15/19, 2 REDACTED
District
43.
Assistive Technology Evaluation, dated 2/26/21, 4 REDACTED
District
C.
Letter from Dr. REDACTED dated 3/4/21, 1 REDACTED
Parent
H. i-ready-Gr. 8 (Reading), 2 REDACTED
Parent
I. i-ready-Gr. 7 (Reading), 2 REDACTED
Parent
J. i-ready-Gr. 8 (math), 2 REDACTED
Parent
K. i-ready-Gr. 7 (math), 2 REDACTED
Parent
L.
ESY Report Card, 2020, 2 REDACTED
Parent
U.
IEP, dated 10/26/20, 18 REDACTED
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 12, 2021
44.
Speech and Language Evaluation, dated 12/4/19, 4 REDACTED
District
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 10, 2022
W.
Progress Report, dated 12/31/21, 1 REDACTED
Parent
X.
8th Grade Report Card, dated 11/12/21, 1 REDACTED
Parent
Y.
Progress Towards Goals and Objectives, dated11/29/21
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 9, 2022
D.
Progress Report REDACTED Middle School, dated 11/1/21, 1 REDACTED
Parent
F.
REDACTED Progress Report (REDACTED) dated July 2021, 2 REDACTED
Parent
G.
REDACTED Progress Report (REDACTED) dated August 2021, 1 REDACTED
Parent
R.
Reading Evaluation, dated 3/27/21, 13 REDACTED
Parent
V.
Email chain, dated 4/10/19, 3 REDACTED
Parent
AA.
REDACTED CV, undated, 4 REDACTED
Parent
BB.
Reading Evaluation, dated 12/12/21, 1/28/21, 1/16/22, 17 REDACTED
Parent
CC.
Progress Report, dated 1/11/22, 1 REDACTED
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 18, 2022
45.
Package of documents complied by Ms. REDACTED in response to subpoena, various dates, 233 REDACTED
District
DD.
Report Card for Marking Period 2, 8th grade, 1 REDACTED
Parent
EE.
i-Ready Reports, Dec 2021, 4 REDACTED
Parent
HH.
Credit Union Payments to REDACTED, various dates, 7 REDACTED
Parent
NN.
Amended Report –REDACTED, dated March 2021
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 23, 2022
A.
Email thread re: tomorrow’s quiz, dated 10/6/21, 3 REDACTED
Parent
E.
REDACTED Progress Report (Shore), Summer 2021, 1 REDACTED
Parent
FF.
Checks to REDACTED, June 2021, 2 REDACTED
Parent
II.
Credit Union Payments to REDACTED, various dates, 4 REDACTED
Parent
LL.
Email Thread Re REDACTEDs Session, dated 10/25/20, 3 REDACTED
Parent
MM.
Email Thread Study Guide Circulatory System 2020, dated 11/23/20, 3 REDACTED
Parent
OO.
Email re: REDACTED w/attachments, dated 6/14/21, 5 REDACTED
Parent
PP.
Email re: REDACTED2 REDACTED
Parent
QQ.
Email re: Corrective Reading, 3REDACTED
Parent
RR.
Email re: Today’s Call, 3 REDACTED
Parent
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I.
Statement of Adjournments and Extensions, undated, 1 REDACTED
IHO
II.
Memorandum of Law on Behalf of the REDACTED Central School District, dated 4/6/22, 30 REDACTED
IHO
III.
Petitioner’s Brief, dated 4/6/22, 35 REDACTED
IHO
Footnotes
[1] Generally, the ICT model requires that there are two certified teachers in the class, a general education teacher and a special education teacher with both special education students and general education students. An ICT class follows the state mandated curriculum. The role of the special education teacher is to modify the lessons, assignments, and other materials for the classified students pursuant to the modification, accommodations and needs as set forth on their IEP.
[2] Regarding the diagnosis of ADHD Dr. REDACTED stated “I also strongly recommend discussing with his pediatrician a trial of the class of medicines used to treat ADHD. His attentional deficits are reducing his ability to learn and profit from remediation.” The Parent testified that she spoke to Dr. REDACTED about medication for ADHD but decided not to pursue medication. (t. 136-37, Ex. 24)
[3] The committee advised the Parent that the ESY program is to address regression, not for new instruction. In the summer sessions they work on maintaining the progress the student made so they don’t regress during the time they are out of school. It is to prevent substantial regression. (t. 140 Ex. 2)
[4] The report was an Independent Educational Evaluation (“IEE”). (t. 1544)
[5] Encoding is spelling and decoding is reading. (t. 130-31)
[6] The FM system is a sound system where the teacher wears a device and REDACTED wears a device and the purpose is to have his attention be more directed to the teacher’s words by amplifying the teachers voice directly into his ears. (t. 613)
[7] The Parent testified that the purpose of the neurofeedback was to work on training the processing part of REDACTED’s brain to address his impulsivity and attention, the things that interfere with his ability to access education at school. The Parent stated that she did not give any formal notice that she had started neurofeedback therapy to the District but that she talked about it. She did not provide any reports to the District. (t. 1346, 1588-90)
[8] The Parent testified that the reading tutor is a neighbor, REDACTED who is or was a special education teacher in a neighboring school district. The Parent believed that she was a certified special education teacher in ELA. Ms. REDACTED recommended the corrective reading direct instruction program. The Parent testified that Ms. REDACTED is not Orten-Gillingham certified. She provided tutoring 1x per week, 2x per week during the COVID shutdown. (t. 1347, 1354-55, 1672)
[9] Ms. REDACTED testified that she provided counseling for REDACTED in the 4th and 5th grade and possibly the 3rd grade but was unsure when it started because the Parent was originally resistant to the need for counseling. (t. 1003)
[10] There was a great deal of testimony about whether REDACTED was on the autism spectrum. The District felt that REDACTED displayed characteristics of autism. The Parent testified that both Dr. REDACTED and Dr. REDACTED considered the question and neither diagnosed REDACTED with autism. The reasoning was based on there being 5 criteria for autism and REDACTED only met 4 of the criteria. While there were a lot of similarities in his behavior to lead to the conclusion that REDACTED was autistic both doctors found that REDACTED was very engaged and interested in the doctors leading each to conclude that REDACTED was not autistic. The Parent testified that she could not recall the District ever evaluating or asking to evaluate REDACTED for autism. On 3/4/21 the Parent presented a letter from Dr. REDACTED seeking mask breaks for REDACTED. Among other diagnosis’s Dr. Redacted diagnosis REDACTED with autism spectrum disorder, level 1. (t. 203, 402, 1009-14, 1018-19, 1035, 1319, 1322-25, 1539-40, Ex. C)
[11] The Parent did not ultimately view the REDACTED as the day she set aside to see the program the students were not in the classroom. In addition, Ms. REDACTED informed her that she and Mr. REDACTED could support REDACTED’s placement outside of the REDACTED. The Parent testified that she believed the change by Ms. REDACTED and Mr. REDACTED was an acknowledgement of the progress that REDACTED had made which she believed was a refection of the school, neurofeedback and tutoring he was receiving. (t. 1348-49, 1577-79, Ex. V)
[12] The FSIQ is a composite of all the subtests that are assessed and are used to determine functioning. Overall, it is a predictor of intellectual functioning, of what REDACTED might reasonably be able to do. (t. 296-98)
[13] Ms. REDACTED defined receptive language as “a measure of listening comprehension or a student’s ability to interpret and analyze and make sense of language based information”.
[14] A reevaluation meeting is held every 3 years to review eligibility for special education, review the classification and make changes if needed. The CSE reviews, including but not limited to, a psychological evaluation, academic evaluation, social history, classroom observation and a physical. (t. 156, 289)
[15] Ms. REDACTED testified that neither the Parent nor anyone on her behalf ever contacted her to say that evaluations were not accurately recorded in REDACTED’s IEP’s. (t. 164)
[16] Ms. REDACTED testified that “auditory processing is perceptual processing of auditory information in the central auditory nervous system. So the auditory processing evaluation that I would administer as a speech-language pathologist would serve primarily as a screener for students for whom we think there might be some neurobiological deficits in auditory processing.” (t. 415)
[17] Ms. REDACTED testified that she became aware that the Parent was represented by counsel and planning a due process hearing against the District in or around 3/16/21. Ms. REDACTED originally testified that she became aware there was a hearing pending several months after she issued her evaluation but conceded that while she was writing the report she was aware that it was going to be used in the hearing pending against the District. Ms. REDACTED testified that she was also aware that she would be called as a witness at the hearing and that she submitted a draft of the evaluation to the Parent for review by herself and her attorney prior to finalizing the report. Ms. REDACTED was not given permission to share the report with the District or anyone else. Ms. REDACTED was also aware of the pending hearing when she reevaluated REDACTED. (t. 1240-50, 1288-90, 1292-95,1305-06, Ex. 45)
[18] Ms. REDACTED testified that she is not qualified to make a diagnosis of dyslexia. She testified that at the time she wrote her first evaluation she had no independent documentation diagnosed REDACTED with dyslexia. (t. 1223, 1231-32)
[19] While Ms. REDACTED has training in Orten-Gillingham she is not certified. (t. 1092)
[20] Dr. REDACTED recommended multisensory reading instruction with a reading specialist which includes Orten-Gillingham but not exclusively. He also recommends Wilson and Lindamood Bell Learning Processes stating that they are “prototypes of this approach that have all been widely used to address significant reading difficulties.” Dr. REDACTED specifically recommends Orten-Gillingham in his evaluation. (Ex. 24, 34)
[21] The issue of whether REDACTED is dyslexic is similar to the question of whether or not he is on the autism spectrum, he does not clearly fit all the criteria which causes opinions to differ.
[22] 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. 29, 279, 514-15, 779, 896, 1193, 1421, 1627)