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NEW YORK STATE DEPARTMENT OF EDUCATION
In the Matter of REDACTED and REDACTED, on behalf of the minor child, REDACTED,
-against-
SED Case #: 569625
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: December 29, 2022
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
3/16/22 hearing date:
For the Student:
REDACTED, Esq. (via phone)
For the District:
REDACTED, Esq. (via phone)
5/9/22 hearing date via ZOOM:
For the Student:
REDACTED, Esq.
REDACTED, Esq.
REDACTED, Parent
For the District:
REDACTED, Esq.
REDACTED, Director of Special Education
REDACTED Assistant Director of Special Education
REDACTED, School Psychologist
6/3/22 hearing date via ZOOM:
For the Student:
REDACTED, Esq.
REDACTED, Esq.
REDACTED, Parent
For the District:
REDACTED, Esq.
REDACTED Assistant Director of Special Education
REDACTED, Teacher
6/10/22 hearing date via ZOOM:
For the Student:
REDACTED, Esq.
REDACTED, Esq.
REDACTED, Parent
REDACTED, Psychologist
For the District:
REDACTED, Esq.
REDACTED, Director of Special Education
7/11/22 hearing date via ZOOM:
For the Student:
REDACTED, Esq.
REDACTED, Esq.
REDACTED, Parent
REDACTED, Tutor
For the District:
REDACTED, Esq.
REDACTED, Director of Special Education
8/29/22 hearing date via ZOOM:
For the Student:
REDACTED, Esq.
REDACTED, Esq.
REDACTED, Parent
For the District:
REDACTED, Esq.
REDACTED Assistant Director of Special Education
REDACTED, Teacher
INTRODUCTION
On 2/4/22, 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 2019-2020, 2020-2021 and 2021-2022 school years.
BACKGROUND
At the time of the hearing, REDACTED was a REDACTED year old general education student finishing 5th grade at REDACTED Middle School. The school years at issue cover 2019-2020 (3rd grade, REDACTED Elementary School), 2020-2021 (4th grade, remote learning) and 2021-2022 (5th grade, REDACTED Middle School). REDACTED attended REDACTED Preschool when she was 3 years old. The Parent testified that the school had all the students screened by an outside agency and REDACTED failed the speech screening. The Parents were advised that they could have a full evaluation performed which they requested. The Parent testified that REDACTED was found to have an approximately 17-month delay in articulation, speech sound production and a moderate to severe phonological impairment. REDACTED had received services in pre-school.[1] REDACTED was also screened by the District prior to entering kindergarten. The Parent testified that the screening revealed that REDACTED did not know all her upper- and lower-case letters, did not know all her letter sounds, and did not know any sight words. She did recognize numbers and was good at counting. The Parents deferred kindergarten for a year because of the delays. REDACTED started kindergarten during the 2016-2017 school year, and she continued to struggle with her letters and letter sounds, though overall her teacher reported she was a great student. In the first grade, 2017-2018 school year, the Parent testified that REDACTED required support in reading both at home and school, and the issues noted were in fluency, word reading and decoding. The Parent stated that she was not aware of any additional services that REDACTED could receive to help her with fluency or that she was receiving such services. The Parent stated that the comments on the report card indicated that there were concerns with REDACTED’s reading but that she did not know the extent of the issues or what the school was doing to address them.[2] The Parent testified that she was concerned with REDACTED’s progress at the end of first grade, that the teacher was working with REDACTED and the Parents were working with her at home but the Parents did not see any improvement. The Parent stated that she was not told that she could refer REDACTED for special education services at the end of first grade. In the second grade, 2018-2019 school year, the Parent testified that REDACTED continued to struggle with reading. The Parent stated that the teacher told her they were working on decoding and fluency and that they should work with REDACTED at home, but they did not inform her that REDACTED was receiving any intervention.[3] (t. 72- 82, 186-89 V5, Ex.1, 3, 16, 17, 18)[4]
The Parents assert that the District failed to provide REDACTED with a free and appropriate public education (“FAPE”) for the 2019-2020, 2020-2021 and 2021-2022 school years. Further, the Parent alleges that the District failed in its duty under Child Find to identify, locate and evaluate REDACTED as a child with a disability to ensure that she receive needed special education services. The District denies the allegations as set forth in both the due process complaint and the amended due process complaint and raised a statute of limitations claim in their answer(“dpc”).[5]
FINDINGS OF FACT
The District has a response to intervention program (“RTI”) which is under the framework of a multi-tiered system of support (“MTSS”). The interventions are broken down into three tiers. Tier 1 is general instruction which takes place in the general education classroom.[6] Instructional support specialists work with the students in tier 2, which is outside the classroom (but can also be in the classroom depending on the structure of the building) and tier 3 which is intensive support. RTI is early intervention and fluid so there are times when a student may go back and forth between the tiers. The District universally screens the students three times per year in literacy and math. The screening method used is the Fast Bridge platform (“FAST”). FAST is screening that is used to measure fluency and information on how the student is decoding. These screenings are done at the beginning, middle and end of the school year. There is also a core program, Core Knowledge Language Arts (“CKLA”) that has assessments embedded, which is considered tier 1 in kindergarten through fifth grade. The FAST results, in combination with information from the teachers, instructional specialists and the CKLA assessments determine what tier a student is in. If more information is required, they have diagnostic assessments that can be given.[7] The determination as to what tier a student is in, is made by the data team which consists of classroom teachers, instructional specialists, sometimes the principal and the literacy lead teacher. Tier 2 is called TEAM time and it is determined by the team meeting. The students will either have additional practice in texts or have interventions targeted to their skill deficits. Tier 2 is in a group ranging from 1 to 3 students to 5 to 6 students and they are grouped based on similar needs. Tier 3 services are increased in duration and the groups are smaller, (1 to 3 students or one to one). In tier 2 and 3 progress is monitored weekly or biweekly. The Data Inquiry Team meets for students that are receiving tier 2 services to talk about the students and how they are progressing. If a student is not making progress, based on the progress monitoring, they would be referred to a Data Inquiry Team meeting (“DIT”), which could also include the school psychologist. Any classroom teacher can sign up a student for a DIT meeting. At the DIT meeting they look closely at the data, how the student is performing and decide whether to increase their level of support. The DIT meeting can also result in a referral to the Committee on Special Education (“CSE”) based on a student’s lack of progress or performance. The criteria for referral to the CSE is a lack of progress based on weekly progress monitoring. Lack of progress is determined by how the student is performing. FAST is used, and it has a trajectory of how the student is performing and whether the student is making growth, and if not, they discuss changes in intervention. If the student has the highest level of support, intervention has been changed and/or increased and the student is stagnating, or the trajectory is going in the wrong direction, then progress is not being made and a referral to the CSE is made. (t. 69-72, 107-08, 136-38, 150-51 V1, t. 24- 36 V2)
REDACTED was attending the third grade during the 2019-2020 school year in a general education classroom in REDACTED Elementary School. The Parent testified that REDACTED continued to struggle in the third grade with reading, that she was becoming more aware that she was a poor reader, and it was affecting her comprehension. The Parent did not feel that REDACTED’s report cards reflected the struggles with fluency, decoding, spelling, and comprehension that they were seeing at home. The Parent became alarmed when REDACTED’s third grade teacher sent home that Fall’s assessment results that showed that REDACTED’s fluency score of 76 was below the benchmark (<86 some risk, <51 high risk). The Parent spoke to the teacher, REDACTED and the teacher indicated that there were concerns and weaknesses but that they were working with REDACTED. The Parent testified that it was at that time that she was informed by REDACTED that REDACTED was getting tier 2 intervention. The Parent testified that she did not understand how REDACTED could be getting all 3’s on her report card if she was getting tier 2 intervention and the struggles that they were seeing at home.[8] The Parent spoke to the teacher on the phone and advised her that the struggles that REDACTED was having were red flags to her. She likened them to what she had experienced with REDACTED’s older sister. After the phone conversation with REDACTED, she felt dismissed, frustrated, and had a lot of concerns. The Parent was concerned that time was of the essence, because from kindergarten to second or third grade kids learn to read and after that they are reading to learn. REDACTED was in the third grade already and her struggles with reading would only cause REDACTED to fall behind. The Parent testified that she previously had a hard time getting help from the District for REDACTED’s older sister. The Parent decided to reach out to REDACTED the psychologist who had worked with REDACTED’s older sister to discuss her concerns and whether an evaluation was warranted. The Parent reached out to REDACTED in October of 2019. Based on what the Parent told REDACTED she determined that an evaluation was warranted. A psychoeducational evaluation was scheduled for December 2019. The District closed the schools in mid-March 2020 due to the COVID pandemic and resulting shutdown. The classes resumed remotely via ZOOM. (t. 92-102 V5, Ex. 19, CCC)
REDACTED testified that she was contacted by REDACTED’s parents to perform a psychoeducational evaluation. The Parents were concerned about REDACTED’s reading progress, that their older daughter (REDACTED’s older sister) was diagnosed as REDACTED, and they were seeing similar signs in REDACTED. The Parents told the doctor that REDACTED was struggling in school, had been since kindergarten and that she had been in and out of academic intervention support services (“AIS”). REDACTED defined AIS as the general education interventions that schools provide through RTI, also referred to as MTSS. It is the interventions that schools give to children who are struggling but don’t need special education or have not been tested. REDACTED stated that her evaluation consisted of a records review and a clinical interview with the Parents, collected teacher information, gave REDACTED readings tests, an IQ test, and achievement testing. She did not do a classroom observation as there were no behavior concerns in the classroom and she does not find it particularly helpful for a reading evaluation. The testing was done in a single day, 2 ½ hours in the morning, a break, and then 2 ½ hours in the afternoon. The cognitive testing used was the Wexler Intelligence Scale for Children (“WISC”), the testing found that REDACTED’s IQ fell within the average range and that she had strengths in verbal comprehension and working memory. No significant weaknesses were found. The doctor stated that based on her IQ scores REDACTED should be proficient in reading and writing. In view of her cognitive ability REDACTED testified that she would expect her academic testing to show average to high average areas of achievement in all areas. The academic testing used was Wechsler Individual Achievement Test (“WIAT”) which is a wide range achievement test that she started with to get the lay of the land. Then, once she sees areas of concern or weakness, she will follow up with more specialized tests which in this case was the Feifer Assessment of Reading (“FAR”), the Test of Word Reading Efficiency (“TOWRE”) and the Phonemic Awareness Screening Test (“PAST”). REDACTED testified that while initially REDACTED was anxious, once she became accustomed to the doctor, and engaged in some conversation she no longer appeared anxious. REDACTED found, based on the testing, that REDACTED has significant difficulties in reading decoding, word reading accuracy and comprehension, as well as underlying reading processes of phonological awareness and orthographic processing and diagnosed REDACTED as a student with dyslexia, a language-based reading disability. It was the opinion of REDACTED that REDACTED met the classification under the IDEA, as a student with a specific learning disability in reading and therefore she should be provided with an individualized education plan (“IEP”). REDACTED stated that the criteria to determine that REDACTED should be classified and receive an IEP was that she had been in and out of AIS support and was still reading at a phonemic proficiency well below level and that she was clearly REDACTED.[9] REDACTED testified that she is generally familiar with RTI at the District and that REDACTED is making some progress, just enough to make it look like RTI is enough, but REDACTED does not believe that it is. REDACTED stated that some of the ways the District is measuring progress is suspect, making it appear that REDACTED is making more progress than she is and that she is not able to keep up with the curriculum. She stated that she believes, in her professional opinion, that REDACTED needs the intensified services of an IEP “Because she’s been getting good, solid intervention and still falls—and has a strong vocabulary, strong background knowledge, strong oral comprehension and still falls below average and expected levels on her decoding, decoding fluency, and reading fluency.” REDACTED recommended, among other things, that REDACTED receive systematic, explicit, and individualized reading intervention such as Orton-Gillingham, Road to Reading, the Wilson Reading Program or Lindamood Phoneme Sequencing Program for Reading to directly address her deficits in a more intensive and systematic fashion than she was getting in AIS. The reading instruction should be daily for 40 to 50 minutes. (t. 23-24, 28-29, 31-51, 90-91, 101-02, 110-12 V4, Ex. D)
REDACTED was starting fourth grade in the 2020-2021 school year and the District had a number of ZOOM calls for parents that let them know what the plan was for the upcoming school year. The District’s plan offered remote or in-person learning. The kindergarten through fourth grade students had the option for in-person learning five days a week, full time. The classes were smaller to provide for social distancing. The District told parents that regardless of which option was chosen, the students would receive the same education and it would be administered by District employees. There was no requirement that parents present a reason for choosing remote learning. REDACTED’s parents chose remote learning for REDACTED because of asthma and seasonal allergies. REDACTED was REDACTED’s remote fourth grade teacher and she testified that students were permitted to come and go from remote learning throughout the school year. In the Fall, they focused on reading and math and as the year progressed, they integrated social studies, science, and specials (such as music and art). REDACTED testified that they used both ZOOM and Google Classroom. On average, they were live for about 2 hours per day with 1 hour for reading and an hour for math following the New York State Grade 4 curriculum. In addition, she would meet with small groups of students (1 to 3) between 9:15 and 9:45 for 20 minutes to take turns reading and work on different strategies to improve fluency and comprehension. The small group reading was offered to all students in the class, though not all participated. After they were live, the students would have assignments to complete on their own. The work was done on the computer through Google Classroom. The students had hard copies of the books and could use paper and pencils, but the work had to be submitted through Google Classroom. REDACTED testified that she would record herself reading to the class and had clips of other teachers in the district reading. REDACTED testified that she did the FAST screener for the students at the beginning of the school year and would give them weekly fluency practice. The students would practice it during the week, and they would submit their data at the end of the week. The students would read the article first and then time themselves for one minute and count how many words they read. REDACTED stated that REDACTED had excellent attendance and she was very attentive and prepared. There was not a lot of verbal interaction, as found in a regular classroom. REDACTED would ask questions, participated most of the time and submitted her work as required. REDACTED stated that comprehension and vocabulary were areas of strength, but REDACTED struggled with fluency, spelling, and punctuation. She did very well in math and had great math reasoning. REDACTED stated that at the beginning of the school year the Parent told her that REDACTED had been diagnosed with dyslexia and that she worried about reading and did not want to read in front of others. REDACTED testified that she was mindful of that and would ask for volunteers to read. REDACTED would not volunteer for the whole group, but when they broke into smaller groups, she would read out loud. (t. 62 V1, 23- 32, 42 V3, 105-06 V5)
The Parent testified that she received REDACTED psychoeducational evaluation in the end of May 2020. The Parents learned that REDACTED had a diagnosis of REDACTED and that the report reinforced what they had been seeing at home and gave them a road map to follow in addressing the issues. The Parent did not send the evaluation to the District until the beginning of the 2020-2021 school year citing the pandemic and the lockdown as the reason for the delay. The Parent emailed REDACTED evaluation to the District, specifically to the principal of REDACTED Elementary School, the school psychologist and REDACTED[10] Assistant Director of Special Education, on 9/3/20 and requested that a CSE meeting be scheduled. The Parent did not receive a response from the District, so a few weeks later she sent a follow-up email to both the administrator for remote instruction and REDACTED. She received a response from REDACTED advising her that the remote school psychologist, REDACTED, was working on it and would be in touch. At the end of September, the Parent stated that she received a phone call from REDACTED asking if she wanted to pursue the CSE, which she did. REDACTED told her that the Parent would have to sign a consent form which was sent via email. The Parent signed the consent form, dated 10/1/20, and returned it to REDACTED on 10/2/20. The Parent stated that she was never asked for a social history or for a physical examination of REDACTED. (t. 103-05 V1, 102-04, 108-10 V5, Ex. D, G, H)
REDACTED testified that parents are informed that they can refer their students to the CSE for evaluation, if they believe they have a disability, on the school website. In addition, if a child is referred for intervention services, they are notified of the right to refer the student to the CSE. At the time the referral was received from the Parent, REDACTED testified that she had not had any staff member suggest that REDACTED was a student suspected of having a disability. The Parents had not previously made a referral to the CSE for REDACTED. They had not advised the District that they were going to have REDACTED evaluated by REDACTED or made a request for an independent evaluation. REDACTED testified that in preparation for the CSE meeting they did a records review, academic testing, and a classroom observation. REDACTED stated that the record review consisted of reviewing REDACTED’s report card, curriculum-based measures (CKLA and FAST screenings) and consulted with her instructional specialist. The District did not do cognitive or psychological testing, rather they relied on REDACTED testing as well as her narrative on Medical and Social History. REDACTED testified that among the documents required for the CSE meeting is a physical examination and a social history and typically those forms are sent to the Parent. REDACTED stated that they did not receive a social history or physical from the Parent, but also that she never reached out to the Parent to follow-up but rather relied on REDACTED report. (t. 63-66, 77-81, 105-06, 143-144 V1, Ex. 10,14, 15)
A CSE meeting notice dated 10/23/20 was sent to the Parent scheduling the meeting for 11/6/20. The meeting notice characterizes it as a phone conference and the purpose of the meeting as initial eligibility determination meeting. A pre-meeting was scheduled for 10/26/20, via ZOOM, and was attended by the Parent, REDACTED and REDACTED. The Parent testified that REDACTED was a special education teacher who performed testing on REDACTED in preparation for the CSE meeting. The Parent had not received the results of REDACTED’s testing as of the pre-meeting. REDACTED reviewed her testing and the Parent felt that the results were similar to REDACTED findings with a lot of deficits in fluency, comprehension and decoding. At first the Parent believed that they were on the same page but during the meeting REDACTED advised her that they would not be recommending an IEP for REDACTED because she did not meet the criteria and they did not think she needed an IEP.[11] REDACTED testified that REDACTED did not meet the qualifications for an IEP, that there was no evidence that general education was not meeting her needs, that she responded to every intervention and worked at grade level standards. The Parent testified that she was shocked to hear that they believed that REDACTED was fine and on grade level. At the pre-meeting the Parent played a recording of REDACTED reading an assigned passage from class. The Parent testified that she recorded the passage of REDACTED reading to show how she does when she must read something independently. The Parent testified that she played the recording for REDACTED and REDACTED because they had told her that REDACTED would not be recommended for an IEP, and they did not know her, so she wanted to show them a recent example of her independent reading. REDACTED testified that the reading was difficult to listen to, but that everyone who worked with REDACTED reported that her reading was more fluent than the recording showed. The Parent also requested testing data for REDACTED from REDACTED, though she was not sure if it was at the pre-meeting or shortly thereafter. (t. 132-33, 147 V1, 113-18, 131-32 V5, Ex. 13, R, SS, TT)
On 11/2/20 the Parent contacted REDACTED, via email, and advised her that she had learned that the District was not recommending that REDACTED receive special education services. She expressed her disappointment but advised that she would continue to advocate for REDACTED and with the data she had received could not understand how the District did not believe that she needed the support of an IEP. The Parent also advised REDACTED that the District told her that the CSE meeting would be a conference call, rather than a ZOOM meeting. (Ex. V)
On 11/4/20 REDACTED provided testing data to the Parent for grades 1, 2 and 3. The information was compiled from testing data for the grades and classrooms that REDACTED was in. REDACTED testified that the actual reports could not be provided to the Parent because REDACTED’s results were listed with the results of other students. REDACTED stated that she had referenced the scores provided during the pre-meeting telling the Parent that the scores were good scores in the short amount of time that REDACTED was required to be in RTI to meet grade level benchmarks. REDACTED also advised the Parent, in answer to her question, that REDACTED had never been referred to DIT. REDACTED testified that this indicated to her that REDACTED was making progress when given intervention. (t. 109-17, 136 V1, Ex. N, W)
The CSE meeting was held on 11/6/20 and was recorded by both parties. The recording by the Parent is an audio recording, the recording by the District is a video recording. The meeting was attended by REDACTED, Assistant Director of Special Education, REDACTED, School Psychologist, REDACTED, Special Education Teacher, REDACTED remote 4th grade General Education Teacher, The Parents and REDACTED The District employees appeared via ZOOM while the Parents and REDACTED participated via conference call. The CSE team discussed REDACTED’s present levels of performance and how she was doing socially. They discussed the evaluations and REDACTED’s response to interventions. REDACTED reported on her evaluation. REDACTED testified that she felt that while REDACTED evaluation was comprehensive it was missing data on the RTI that REDACTED had participated in. REDACTED reported on her testing and REDACTED reported on the classroom evaluation and records review noting that the Parents are strong advocates for REDACTED, that she responds to interventions and is making progress in grade level standards. Further, REDACTED testified that she spoke about REDACTED’s rate of progress and performance, and that she disagreed with REDACTED recommendation because she was reading on grade level, meeting standards and did not show evidence of a child with a disabling condition. The Parents expressed their concerns around REDACTED’s reading. REDACTED testified that the CSE determined that REDACTED did not meet the criteria to be classified as a student with a disability because she was performing at grade level, her report cards were satisfactory, and she had been making satisfactory progress. REDACTED noted that REDACTED had been progress monitored for fluency that day and had performed 15 words over the benchmark (what was expected for a student of her grade level at that time of year). REDACTED testified that she provided benchmark results and anecdotal observations of REDACTED. She testified that she agreed with the CSE determination because they had the prior year’s data, when REDACTED was in school live and that the teachers really knew her and her learning experience and based on her experience it was the correct decision. The progress monitoring for fluency was based on a repeated reading which is meant to be read multiple times and benchmarked, the standardized information is based on a repeated read. REDACTED testified that she had no reason to disagree with REDACTED diagnosis of dyslexia but noted that such a diagnosis does not automatically mean that a student has a learning disability under the IDEA.[12] REDACTED testified that she participated in the CSE meeting and that she recalled that the data from the academic evaluation was quite similar to the data in her evaluation, which in her opinion showed a learning disability. REDACTED discussed her evaluation and findings but testified that she did not believe that there was not much emphasis placed on it, and she did not recall being asked any questions about her report, (which surprised her). She recalled discussion regarding REDACTED’s anxiety over reading, in which the District took the position that anxiety was causing the reading problem. REDACTED disagreed and stated that anxiety might cause learning performance to suffer but is not going to cause a reading problem. She testified that she believed that anxiety is the symptom of the reading difficulty, not the cause. REDACTED testified that she felt that the decision to deny eligibility as a student with a disability was made prior to the meeting. At the CSE meeting, REDACTED maintained her opinion that REDACTED should be classified as a student with a disability. The Parent testified that she did not feel that everyone at the meeting had an open mind, specifically REDACTED and REDACTED. The Parent stated that REDACTED noted the problems that REDACTED was having with reading and REDACTED went over her findings which the Parent found significant. The Parent testified that “So it just seemed like we all knew there was a problem, but they told me before the meeting that they were going to deny it. Even after everyone presented their concerns, the outcome was the same. They denied the IEP for REDACTED.” (t. 68-76, 81-86, 90, 93-95, 138-39, V1, 31, 35-36, 47 V3, 54-57, 62-63, 66-67, 99-100 V4, 137-39 V5 Ex. 9, 20, 27, I, UU)
Following the CSE meeting the Parent testified that REDACTED’s fluency continued to lag, was having problems comprehending grade level texts and need a lot of help from the Parent and REDACTED. REDACTED began receiving tier 2 intervention and they were using the Rewards program but did not seem to be making much progress. The Parent reached out to REDACTED to express her concerns and she met with REDACTED and did some tests. REDACTED testified that she was contacted by both the Parent and REDACTED about REDACTED at some point after the CSE meeting, possibly January or February. The concern raised was her inability to decode and lack of fluency. She spoke with REDACTED in March 2021 about her implementation of the Rewards program, which she started using in November 2020. REDACTED did some testing which revealed that REDACTED was deficient in phonemic awareness and was at level L, which she should have mastered by the second grade as well as weaknesses with decoding, and fluency. REDACTED, after the testing, referred REDACTED for a DIT meeting where it was determined that tier 2 was insufficient, and she was moved into tier 3. The Parent testified that while she appreciated the increased intervention, she was not noticing any improvement and contacted REDACTED. REDACTED reviewed her data and told her that REDACTED was showing stagnation. The DIT met again in June and determined that REDACTED would be returned to tier 3 in September when she started the fifth grade. REDACTED testified that she looked at her historical data and found that in the third grade her oral fluency on FAST was in the average range. They determined that the best course was to give REDACTED more time in tier 3 support rather than refer her to the CSE. The Parent provided a ten-day notice letter to the District dated 6/23/21 advising that based on the failure of the District to classify REDACTED and offer her an appropriate program they were hiring a Wilson Certified instructor, REDACTED, at the rate of $50 per hour and reserved the right to seek reimbursement. (t. 42- 48, 79, 88 V2 141-53 V5, Ex. C)
REDACTED started the fifth grade, 2021-2022 school year, at the Middle School and was not provided with tier 3 instruction. REDACTED testified that the fifth grade was universally screened, and REDACTED did not come up as high risk. REDACTED was not on the roster for high-risk students, so they did not give her tier 3 services. The Parent contacted the school about the lack of tier 3 services. The school contacted REDACTED who told them that REDACTED should be in tier 3, and it was implemented. The Parent testified that REDACTED continued to struggle with reading and fluency in the fifth grade. (t. 48 V2, 155-160 V5)
REDACTED provided tutoring to REDACTED starting in September 2021 and testified that the Parents believed that REDACTED was having trouble with reading and wanted to get her support, specifically in the Wilson reading program. REDACTED is a certified Wilson instructor, since 2017, but does not have a New York State reading certification. REDACTED assessed REDACTED’s reading by giving her the Wilson Assessment of Decoding and Encoding (“WADE”). REDACTED testified that she tutors REDACTED with her sister at the same time noting that Wilson can be run in small groups up to 5 and that she can only meet with the two of them once a week during the school year. REDACTED’s sister is 2 years older than she is, but they are close in terms of reading level. She testified that REDACTED is behind her peers in her ability to decode and encode and struggles with comprehension. REDACTED testified that REDACTED is responding well to the Wilson reading program and should continue in it as REDACTED needs a very structured program that is going to focus on the decoding and encoding to help her learn. (t. 16, 29, 42-50, 52, 61 V5, Ex. FF, GG, HH, JJ)
REDACTED was REDACTED’s fifth grade teacher for the 2021-2022 school year. REDACTED testified that he taught REDACTED all subjects for the first half of the year and then they transitioned to three teachers and at that point he taught her social studies, reading and science. REDACTED testified that REDACTED participated in class but did not volunteer a lot in the beginning of the school year but as the year progressed, she gained confidence and would raise her hand to volunteer information. REDACTED would read in class and occasionally would volunteer to read. REDACTED characterized her reading as average for a fifth grader. REDACTED testified that REDACTED had “on level” grades for most, if not all standards. REDACTED advanced to the sixth grade at the end of the year. (t. 9, 12- 14 V6)
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). As noted by the State Review Office (“SRO”) in Application of a Student With a Disability Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral place had the burden of proof regarding the appropriateness of such placement.
Statute of Limitations The IDEA requires a parent to file a due process complaint within two years from the date on which the parents knew or should have known about the action that forms the basis of the complaint. (20 USC 1415(f)(3)(C) The Parents assert that they were not aware that REDACTED had a reading disability and was in need of special education and related services until they received REDACTED evaluation, in May of 2020, which diagnosed her as dyslexic. The Parents position is that they had until May 2022 to assert their child find claim which brings them well into the 2019-2020 school year. However, it is clear from the testimony of the Parent that she was aware of REDACTED’s struggles with reading and fluency prior to receiving the results of the evaluation in May 2020. The Parent testified that she was alarmed by assessment results received in the Fall of 2019 and in October 2019 reached out to REDACTED and arranged for an evaluation. Upon receiving the evaluation, the Parent testified that it reinforced what they had been seeing at home and gave them a roadmap to follow. Further, the Parents testimony on RTI has been inconsistent. The District argues that the initial due process complaint is dated 2/2/22 and therefore any claim that accrued prior to 2/2/20 is time barred. The District does not dispute that the two-year statute of limitations goes from 2/2/22 back to 2/2/20 which is well within the 2019-2020 school year. The Parent inferred at the hearing that they should be able to go back to September 2019, but it is unclear from their closing arguments that this is the case as their position is that they knew or should have known that that REDACTED was diagnosed as dyslexic in May of 2020. I find, based on the filing of the due process complaint on 2/2/22, that the claims accrued on 2/2/20 and any claim before that is time barred. (t. 30-32 V1, Ex. II, III)
Child Find
As noted by the SRO in Application of a Student Suspected of Having a Disability Appeal No. 21-059 “The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006])… The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245…To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1],[7]). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. (See Reid v. District of Columbia, 401 F3d 516, 518 [D.C. Cir. 2005]). A districts child find duty is triggered when there is reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.” J.S. v. Scarsdale Union Free School District 826 F. Supp2d 635 (2011). To support a finding that a child find violation has occurred, school officials must have “overlooked clear signs of disability” and been “negligent in failing to order testing,” or have no rational justification for deciding not to evaluate” the student (REDACTED P v. W. Hartford Bd. Of Educ., 885 F3d 735, 750 [2d Cir. 2018].” The Parent asserts that REDACTED was in and out of RTI since the first grade and that she moved back and forth between tier 1 and tier 2 since the first grade. However, there was very little objective data provided to show how REDACTED responded to RTI intervention, that for the most part the information was subjective. The Parent points to a Grade 2 CKLA End-of-Year Summary which noted that for Reading Comprehension she appeared to have poor preparation for Grade 3 and in Fluency she scored below the 50th percentile and the fact that at the end of the second grade it was determined that she should be moved back into tier 2. The Parent asserts that REDACTED should have been referred to the CSE at the start of the 2019-2020 school year. (Ex. K, 4)
In Application of a Student with a Disability Appeal No. 17-088 the SRO noted that “State regulation …mandates that a school district may define the specific structure and components of its RtI program…While the district may determine the nature of data to be collected and the manner which progress monitoring will be conducted, the district’s RtI process must include ‘repeated assessments of student achievement…to determine if interventions are resulting in student progress toward age or grade level standards’ (8 NYCRR 100.2[ii][1][iv])” In that case the SRO noted that there was no direct evidence of its written RtI policy or any progress monitoring data specific to the students’ progress in the districts RtI program. The SRO found that “It is difficult to determine if the district was required to initiate a referral due to a lack of adequate progress after an appropriate period of time when the student was provided instruction in the district’s RtI program, based on information in the hearing record suggesting he fluctuated between tier1 and tier 2 interventions…The hearing record is lacking in terms of evidence of student performance data that the district was required to collect while the student was receiving RtI. Such evidence is critical in a child find dispute of this nature insofar as data is supposed to form the basis for: the district’s review and decision making in the RtI process, determinations regarding entering and exiting intervention tiers as defined by district policy and deciding whether and and when the student should be referred for evaluation for eligibility for special education services under the IDEA. The lack of such evidence in the hearing record…results in the district’s failure to establish that the student made adequate progress pursuant to its RtI policy such that referral to the CSE was not necessary.” The SRO found that the child find violation continued until the parents referred the student to the CSE.
I find that the District violated the child find requirement for REDACTED and that violation continued from 2/2/20 until the CSE meeting on 11/6/20. There was a paucity of evidence provided to show how REDACTED responded to RTI. The testimony and evidence were for the most part subjective, such as REDACTED’s testimony that no staff member had ever suggested that REDACTED was a student with a disability. Further, except for the data summary compiled by REDACTED there was not any data or direct testimony to provide insight into how she was doing when she went from tier 1 to tier 2 or what progress she made to be sent back to tier 1. The testimony on RTI was general and did not speak to REDACTED specifically. While I find that the testimony of the Parent is inconsistent with respect to REDACTED receiving RTI (what she knew and how she knew it) I find that it is the duty of the District to maintain progress monitoring records and assessments of a student’s participation in RTI and produce them to support their position that the student was making progress.
11/6/20 CSE meeting
REDACTED performed a psychoeducational evaluation, at the request of the Parents, on REDACTED in December 2019, the report was provided to the Parents in May 2020. REDACTED found, based on the testing, that REDACTED has significant difficulties in reading decoding, word reading accuracy and comprehension, as well as underlying reading processes of phonological awareness and orthographic processing and diagnosed REDACTED as a student with dyslexia, a language-based reading disability. It was the opinion of REDACTED, that REDACTED met the classification under the IDEA as a student with a specific learning disability in reading and therefore she should be provided with an IEP. The Parent provided the evaluation to the District in September 2020 and requested a referral to the CSE. REDACTED did a records review, and a classroom observation and REDACTED did academic testing. The CSE relied on REDACTED evaluation for cognitive and psychological testing as well as her narrative on Medical and Social History. A pre-meeting on 10/26/20, held via ZOOM, was attended by the Parent, REDACTED and REDACTED. The purpose of the meeting was to go over the results of the testing done by REDACTED. The results were similar to those of REDACTED. During the course of the pre-meeting, REDACTED advised the Parent that REDACTED did not meet the qualifications for a student with a disabling condition and they would not be recommending an IEP for REDACTED. REDACTED, in a follow-up email reiterated that they would not be recommending an IEP for REDACTED. Several days later the Parent advised REDACTED that she was told the District was not recommending that REDACTED receive special education services and also that the meeting was not via ZOOM but rather a telephone conference.
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). 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 Court in R.E. v. New York City Dep’t of Educ., 694 F.3d 167, at 191 (2d Cir. N.Y. 2012) emphasized that “even minor violations may cumulatively result in a denial of FAPE”. See also Application of a Student With A Disability., Appeal No. 15-001 where the aggregate effect of procedural violations resulted in a denial of FAPE.
The CSE meeting was held on 11/6/20 to determine eligibility. While the District employees appeared via ZOOM the Parents and REDACTED participated via phone. The Parent asserts that the outcome of the meeting was predetermined, as evidenced by REDACTED’ statements at the pre-meeting and follow-up email. Districts may “prepare reports and come with pre-formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have opportunity to make objections and suggestions.” DiRocco v. Bd. Of Educ. Of Beacon City Sch. Dist., 2013 U.S. Dist Lexis 434*61 (S.D.N.Y. Jan. 2, 2013) See R.L. v. Miami-Dade County School Board, 757 F.3d 1173, 1188 (11th Cir. 2014) “To avoid…predetermination, there must be evidence that the state has an open mind and might possibly be swayed by the parents’ opinion and support for the IEP provisions they believe are necessary for their child. See R.L. 757 F.3d supra at 1188.
REDACTED testified that she discussed her evaluation and findings but did not believe that there was much focus on it and does not recall being asked questions about her report which surprised her. Redacted testified that she felt that the decision to deny eligibility to REDACTED was made prior to the meeting. The Parent testified that she did not feel that everyone at the meeting had an open mind, specifically REDACTED and REDACTED. The Parent stated that REDACTED noted the problems that REDACTED was having with reading and REDACTED went over her findings which the Parent found significant. The Parent testified that “So it just seemed like we all knew there was a problem, but they told me before the meeting that they were going to deny it. Even after everyone presented their concerns, the outcome was the same. They denied the IEP for REDACTED.”
While the District is not obligated to adopt the finding and recommendations of an IEE, they are obligated to consider it while crafting an IEP and recommending a program. The CSE team must consider IEE’s obtained at public expense and other 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]).
It is telling that the District employees appeared via ZOOM and the Parents and REDACTED participated via phone. The record is replete with ZOOM conferences held for meetings with parents and teachers and by the time of the CSE meeting it was used regularly, and it should be noted that the pre-meeting was via ZOOM. Upon viewing the CSE ZOOM recording (Ex. 27) an assumption might be made that some people don’t want to appear on the platform and chose to call-in and not appear on camera. However, a review of the Parents email to REDACTED (Ex. V.) reveals that she was told it was a telephone meeting and the meeting notice for the CSE (Ex. 13) specifically states will be a phone conference. The fact that REDACTED and the Parents were not afforded the opportunity to participate via ZOOM gives the appearance that they were not on an equal footing with the District employees. I find that the decision to deny eligibility to REDACTED was predetermined thereby significantly impeding the Parent’s opportunity to participate in the decision-making process regarding whether or not the student was eligible for special education services. REDACTED, in the pre-meeting and follow-up email, specifically referred to the fact that “our recommendations” are contrary to REDACTED and even when given the opportunity to clarify that it was only her opinion, she testified that she was letting the Parent know “because she had already known what our recommendation was not what [REDACTED] recommendation was”. I credit the testimony of the Parent and REDACTED on the question of predetermination. The Parent also asserts that the District failed to follow the requirements regarding eligibility determination of NYCRR 200.4(j)(5)(ii) which states that “Each CSE member must certify in writing whether the report reflects the member’s conclusion. If it does not reflect the member’s conclusion, the CSE member must submit a separate statement presenting the members conclusions. A review of the prior written notice (Ex. 22) does not contain any certification by the CSE members. The Parent also asserts that the District failed to conduct required evaluations as set forth in NYCRR 200.4(b)(i)-(iv). The record reflects that the District primarily relied on psychoeducational evaluation of REDACTED and failed to evaluate REDACTED in all areas of suspected disability. The record reflects the belief by the District that REDACTED’s reading was impacted by anxiety, which was a cause of her fluency issues, yet they did not perform a psychological examination or any examination to address anxiety. Furthermore, as a pre-school student, REDACTED had been classified for about a year and received speech-language therapy. It would seem reasonable, given her history and reading difficulties that a speech-language evaluation would be warranted. I find that the District impermissibly predetermined that REDACTED would not be eligible for special education services, failed to evaluate her in all areas of suspected disability and failed to certify the results as required.
While I find that there was a reasonable disagreement about whether the student needed to be classified as a student with a disability the District failed on several fronts including, but not limited to, the failure to maintain adequate progress monitoring data for RTI thereby resulting in a finding of a violation of child find to the impermissible predetermination of eligibility for special education services. As noted by the SRO in Application of a Student with a Disability, Appeal No. 22-109 the child find inquiry is separate from the student’s eligibility for special education services. The matter is remanded back to the CSE for evaluations in all areas of suspected disability and to consider REDACTED for eligibility for special education services.
2019-2020 School Year
I find that based on the testimony and evidence adduced at the hearing that the time period at issue is from 2/2/20 to the end of the school year based on the statute of limitation determination that bars consideration for the period prior to 2/2/20. As noted by the SRO in Appeal 17-069 “only students who have a qualifying disability and need special education are entitled to a FAPE (20 U.S.C. §§ 1400 [d][1][A]; 1401[3][A]). Accordingly, district’s child find obligations and its obligations to offer a FAPE are mutually exclusive.” The District violated its obligations under child find for the period from 2/2/22 to the end of the 2019-2020 school year. The District did not deny REDACTED FAPE for the 2019-2020 school year as there was no obligation to provide FAPE.
2020-2021 School Year
I find that based on the testimony and evidence adduced at the hearing, that the District violated its obligations under child find for the period from September 2020 (the beginning of the school year) until the CSE meeting held 11/6/20.
The District maintained during the hearing that there is no continuing violation of child find during the period following the CSE meeting of 11/6/20. Further, the District argued that Claim 1 of the allegations in the amended due process complaint claim a denial of FAPE for the 2019-2020, 2020-2021 and 2021-2022 school years but do not allege any specific act or failure to act subsequent to the 11/6/20 CSE meeting. A review of the amended due process complaint reveals the District is correct and I concur that the Parent is bound by the four corners of the amended due process complaint and there is no continuing violation. Furthermore, REDACTED is not entitled to FAPE because she is not a classified student under the IDEA. As was noted by the SRO in Appeal 17-069 “only students who have a qualifying disability and need special education are entitled to a FAPE (20 U.S.C. §§ 1400 [d][1][A]; 1401[3][A]). Accordingly, district’s child find obligations and its obligations to offer a FAPE are mutually exclusive.” The District did not deny REDACTED FAPE for the 2020-2021 school year as there was no obligation to provide FAPE.
2021-2022 School Year The District maintained during the hearing that there is no continuing violation of child find during the period following the CSE meeting of 11/6/20. Further, the District argued that Claim 1 of the allegations in the amended due process complaint claim a denial of FAPE for the 2019-2020, 2020-2021 and 2021-2022 school years but do not allege any specific act or failure to act subsequent to the 11/6/20 CSE meeting. A review of the amended due process complaint reveals the District is correct and I concur that the Parent is bound by the four corners of the amended due process complaint and there is no continuing violation. Furthermore, REDACTED is not entitled to FAPE for the 2021-2022 school year because she is not a classified student under the IDEA. As was noted by the SRO in Appeal 17-069 “only students who have a qualifying disability and need special education are entitled to a FAPE (20 U.S.C. §§ 1400 [d][1][A]; 1401[3][A]).” The District did not deny REDACTED FAPE for the 2021-2022 school year as there was no obligation to provide FAPE.
Reimbursement for Tutoring The Parent seeks reimbursement for tutoring, as a remedy, from September 2021 to the end of the 2021-2022 school year due to the continuing denial of FAPE. The request for is denied as REDACTED is not a classified student under the IDEA and is therefore not entitled to FAPE.
Request for Compensatory Education The Parents request compensatory education, as a remedy, to ameliorate the effects of the denial of FAPE. The request for is denied as REDACTED is not a classified student under the IDEA and is therefore not entitled to FAPE.
Reimbursement of Psychoeducational Evaluation by REDACTED The request for reimbursement for the May 2020 psychoeducational evaluation by REDACTED is granted as a matter of equity. The Parents are to provide the District with a paid invoice from REDACTED.
ORDER
In view of the foregoing, I find as follows:
This matter is remanded back to the CSE for evaluations in all areas of suspected disability and to consider REDACTED for eligibility for special education services.
The District violated its obligations under child find for the period from 2/2/20 to the end of the 2019-2020 school year and from September 2020 (beginning of the 2020-2021 school year) to 11/6/20.
The District did not fail to provide FAPE to REDACTED for the 2019-2020, 2020-2021 and 2021-2022 school years as only students who have a qualifying disability and need special education are entitled to a FAPE.
The request for reimbursement for tutoring is denied.
The request for compensatory education is denied.
The request for reimbursement for the May 2020 psychoeducational evaluation by REDACTED is granted. The Parents are to provide the District with a paid invoice from REDACTED. [13]
Dated: January 10, 2023
___________________________________
Jeanne M. Keefe
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the school district has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website:
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 9, 2022
1.
Due Process Complaint, dated 2/2/22, 14 pages
District
2.
Response to Due Process Complaint Notice, dated 2/15/22, 2 pages
District
3.
Amended Due Process Complaint Notice, dated 4/14/22, 16 pages
District
4.
RTI Historical Overview, dated 9/22/19-6/26/20, 1 page
District
5.
RTI ELA Student Intervention (Prog Monitoring), 9/29/19-6/26/20, 2 pages
District
6.
Teacher Input Form, dated 5/20/20, 2 pages
District
7.
Email from REDACTED to REDACTED, dated 5/27/20, 1 page
District
8.
Student Information Form, undated, 3 pages
District
9.
Email from REDACTED to REDACTED re IEE, dated 9/16/20, 1 page
District
10.
REDACTED, Ph.D. report, dated 12/10/19, 25 pages
District
11.
Consent for Initial Evaluation, dated 10/2/20, 1 page
District
12.
Guided Reading, dated 10/14/20, 3 pages
District
13.
CSE Meeting Notice, dated 10/23/20, 2 pages
District
14.
Academic Achievement Evaluation, dated 10/2020, 4 pages
District
15.
Classroom Observation Report, dated 10/26/20, 1 page
District
16.
Progress Report, 2016-2017, 2 pages
District
17.
Report Card, 2017-2018, 3 pages
District
18.
Report Card, 2018-2019, 3 pages
District
19.
Report Card, 2019-2020, 6 pages
District
20.
CSE Meeting Notes, dated 11/2020, 3 pages
District
21.
Draft IEP, 9 pages
District
22.
Prior Written Notice, dated 11/6/20, 2 pages
District
23.
Email from REDACTED to REDACTED with 2 attachments, dated 3/25/21, 6 pages
District
24.
Elementary Data Inquiry Team Form, dated 4/7/21, 1 page
District
25.
Email from REDACTED to REDACTED with attachments, dated 1/14/22 5 pages
District
26.
Individual Benchmark Report, 2021-2022, 2 pages
District
27.
Video Recording of CSE Meeting
District
A.
Amended Due Process Complaint, dated 4/14/22, 16 pages
Parent
B.
Due Process Complaint, dated 2/2/22, 13 pages
Parent
C.
Ten Day Notice, dated 6/23/21, 2 pages
Parent
D.
REDACTED Psychoeducational Evaluation, dated 12/10/19, 25 pages
Parent
E.
For Identification
Parent
F.
REDACTED CV, undated, 4 pages
Parent
G.
Email from Parent to REDACTED dated 9/3/20, 1 page
Parent
H.
Prior Written Notice: Proposed Referral for Evaluation and Request for Consent-with Parent signed consent and email, dated 10/1/20, 3 pages
Parent
I.
Prior Written Notice-Proposed Ineligibility for Special Education with supporting documents, dated 11/6/20, 28 pages
Parent
J.
IEP Draft, undated, 9 pages
Parent
K.
Grade 2 CKLA End of Year Summary, undated, 4 pages
Parent
L.
2nd Grade Report Card, 2018-2019, 3 pages
Parent
M.
3rd Grade CKLA Unit Assessment, dated 9/27/19, 4 pages
Parent
N.
Data Drive Information Sheet, undated, 3 pages
Parent
O.
4th Grade Report Card, 2020-2021, 3 pages
Parent
P.
Individual Benchmark Report-CBMR English, 2020-2021, 5 pages
Parent
Q.
Email from Parent to REDACTED, dated 10-22-20, 1 page
Parent
R.
Emails between REDACTED and Parent, dated 10/26/20, 14 pages
Parent
S.
Email from Parent to REDACTED, dated 10/27/20, 2 pages
Parent
T.
Emails between REDACTED and Parent, dated 10/30/20, 2 pages
Parent
U.
Email from REDACTED to Parent, dated 10/30/20, 2 pages
Parent
V.
Email from Parent to REDACTED, dated 11/2/20, 1 page
Parent
W.
Emails between REDACTED and Parent, dated 11/4/20, 6 pages
Parent
X.
Emails between REDACTED and Parent, dated 3/9/21, 3 pages
Parent
Y.
Emails between REDACTED and Parent with PAST and QPS data, dated 3/17/21, 7 pages
Parent
Z.
Emails between REDACTED and Parent, dated 3/25/21, 12 pages
Parent
AA.
Email from Parent to REDACTED, dated 10/22/21, 1 page
Parent
BB.
Email from Parent to REDACTED, dated 1/13/22, 1 page
Parent
CC.
Email from REDACTED to Parent, dated 1/14/22, 4 pages
Parent
DD.
5th Grade Report Card, 2021-2022, 3 pages
Parent
EE.
Text messages between REDACTED and Parent, dated 9/27/21, 4 pages
Parent
FF.
REDACTED CV, undated, 2 pages
Parent
GG.
REDACTED Wilson Certification, undated, 1 page
Parent
HH.
WADE Testing, dated 9/20/21, 5 pages
Parent
II.
WIST Testing, dated 6/22/21, 11 pages
Parent
JJ.
Wilson Lesson Plans, 2021-present, 34 pages
Parent
KK.
Wilson Student Progress (Step 1-6), undated, 8 pages
Parent
LL.
WRS Wordlist Chart, 10/18/21-3/21/22, 1 page
Parent
MM.
Withdrawn
Parent
NN.
Withdrawn
Parent
OO.
For Identification
Parent
PP.
For Identification
Parent
QQ.
Withdrawn
Parent
RR.
For Identification
Parent
SS.
For Identification
Parent
TT.
For Identification
Parent
UU.
Audio Recording of CSE Meeting, dated 11/6/20, 1.21 hours
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 18, 2022
WW.
Notes by District, undated
Parent
XX.
UDS elementary Data Inquiry Team Form, undated, 2 pages
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 3, 2022
28.
5TH Grade Report Card, 2021-2022, 4 pages
District
29.
Attendance Record, 2021-2022, 2 pages
District
30.
PAST Forms B and C, 9 pages
District
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 10, 2022
E.
REDACTED Psychoeducational Evaluation: Reading Update-Evaluation, dated 3-31-22, 20 pages
Parent
ZZ.
For Identification
Parent
AAA.
REDACTED RTI Policy, 5 pages
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 11, 2022
RR.
Student’s 5th grade writing samples, undated, 14 pages
Parent
SS.
Owl Moon from REDACTED, undated, 1 page
Parent
TT.
Audio Recording of Student Reading, Fall 2020, 15.44 minutes
Parent
BBB.
4th Grade Fluency Chart, 9/28/21-6/7/21, 35 pages
Parent
CCC.
ELA Assessment, Fall 2019, 1 page
Parent
DDD.
District Response to Parent Record Request, dated 5/19/21, 1 page
Parent
EEE.
Student’s Additional 5th Grade Work Samples, undated, 3 pages
Parent
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 29, 2022
31.
Progress Report for Marking Period 4, 2016-2017, 2 pages
District
POST HEARING SUBMISSION BY IREDACTEDARTIAL HEARING OFFICER
I.
Statement of Adjournments and Extensions, undated, 1 page
IHO
II.
Post-Hearing Brief on Behalf of the REDACTED Central School District, dated 11/18/22, 19 pages
IHO
III.
Petitioners’ Post-Hearing Memorandum of Law, dated 11/18/22, 31 pages
IHO
Footnotes
[1] REDACTED received speech therapy twice a week as a preschooler with a disability in the Fall of 2013 to address articulation concerns. The services were received from age 3 ½ to 4 ½ at which time she was declassified due to the progress she had made. (Ex. D)
[2] The Parent testified that she found out that REDACTED was receiving additional services in the first grade via a records request in 2020. However, the Parents had REDACTED privately evaluated in December 2019 by REDACTED and advised her that REDACTED has been in and out of AIS reading support every year. REDACTED notes that REDACTED has received tier 1 and tier 2 support in her evaluation. The Parent stated that she had no official notice of academic intervention and only knew about it because REDACTED told them she was receiving it. (t. 78, 189-191 V5, Ex. D)
[3] The Parent testified that she found out that REDACTED was receiving additional services in the second grade via a records request in 2020. See footnote 2. (t. 82 V5)
[4] Citations to transcript pages will be to the page numbers and volume number as the pages are not consecutive across the transcripts/hearing dates. V1 5/9/22, V2 5/18/22, V3 6/3/22, V4 6/10/22, V5 7/11/22, V6 8/29/22.
[5] A dpc was served on the District on or about 2/2/22. The dpc was amended on or about 4/14/22.
[6] All general education students are in tier 1. (t. 70, 137 V1, t. 27 V2)
[7] The diagnostic assessments are the Phonemic Awareness Screening Test (“PAST”) and Quick Phonics Screener (“QPS”). The assessments are given by an instructional specialist and sometimes used to dig deeper into what students need to target interventions.
[8] The Academic Key on the report card lists 3-Meeting New York State and District Standards; 2-Working toward New York State and District Standards; 1-Not Meeting New York State and District Standards; NA-Not assessed at this time. A review of the report card reveals all 3’s where applicable except for two 2’s for Social Studies “Demonstrates an understanding of economic systems”. (Ex. 19)
[9] REDACTED testified that not all students who have a diagnosis of REDACTED qualify for an IEP. (t. 92 V4)
[10] REDACTED and REDACTED are the same person, to avoid confusion she will be referred to as REDACTED in the decision.
[11] REDACTED testified that she told the Parent at the pre-meeting that REDACTED did not meet the qualifications for a student with a disabling condition and that it was her opinion and that the CSE makes the final decision. However, she further testified that she sent a follow-up email to the Parent dated 10/30/20 where she writes “I know our recommendations are contrary to REDACTED.” When asked what that sentence meant REDACTED testified “Well, so this—this email is after the parent meeting we had…so I am just indicating, you know, let—let us know if she had any questions…So I’m letting her know because she had already known that our recommendation was not what REDACTED recommendation was. So that’s all I’m referring to there.” (t. 133-35, 140-42 V1, Ex. U)
[12] REDACTED testified that she was surprised by REDACTED diagnosis of dyslexia based on REDACTED’s actual performance in school and her response to intervention. (t. 125, 162 V1)
[13] 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. 5 V1, 5 V2, 6 V3, 5 V4, 6, V5, 6 V6)