Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK STATE EDUCATION DEPARTMENT

IN THE MATTER OF THE IMPARTIAL HEARING BROUGHT UPON THE REQUEST OF PARENTS CONCERNING THEIR CHILD

AGAINST

Decision and Order Case Number: 570156

GARDEN CITY UNION FREE SCHOOL DISTRICT

Table of Contents

• • Introduction 1
• • Overview 2
• • Background of the Case 3
• • Parents’ Position 5
• • District’s Position 5
• • My Decision 5
• • Student History 6
• • Legal Overview 9
• • 2020-2021 School Year 10
• • Whether the District violated their child-find obligations 10
• • Legal Standard 10
• • Analysis 11
• • Conclusion 18
• • Whether the District failed to provide the Student a FAPE for the 2020-2021 SY (March 3, 2021 IEP) and the 2021-2022 SY (June 1, 2021 IEP) 19
• • Legal Standard 19
• • Analysis 20
• • Conclusion 30
• • 2021-2022 School Year – Three Prong Reimbursement Analysis 31
• • Prong I: Whether the District failed to provide the Student a FAPE (June 2021 IEP) 31
• • Legal Standard 31
• • Analysis 31
• • Conclusion 35
• • Prong II: Whether the Parents established the appropriateness of the Private School 36
• • Legal Standard 36
• • Analysis 37
• • Conclusion 41
• • Prong III: Whether the Parents cooperated with the District 42
• • Legal Standard 42
• • Analysis 44
• • Conclusion 45
• • Whether compensatory education is an appropriate award 45
• • Legal Standard 45
• • Analysis 46
• • Conclusion 47 Appendix A 49 Appendix B 50
• • Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

The hearing was conducted remotely via the Zoom platform, with stenographers present to record the discussion. The transcripts are included in this record.1 Both parties submitted exhibits and closing briefs.2 There are several witnesses and evaluators who participated in this case. There are also several schools mentioned, both public and private. This complexity is compounded by events that occurred prior to and during the 2020-2021 and 2021-2022 school years (“SYs”). To simplify the understanding of this decision, in the appendices, I offer a key to the various named witnesses and schools along with transcript pages and relevant exhibits.

1 A hearing was held across multiple dates: April 22, 2022; May 5, 2022; May 11, 2022; May 19, 2022; June 7, 2022; June 14, 2022; September 13, 2022; September 22, 2022; October 17, 2022; October 18, 2022; November 14, 2022; November 29, 2022; January 9, 2023; January 19, 2023; January 23, 2023; February 6, 2023; February 13, 2023; March 28, 2023; April 10, 2023; April 17, 2023; April 27, 2023; and May 16, 2023.

2 The Parents offered exhibits A-R. The District introduced exhibits 1-65 (this includes Ex. 22A). Both the Parents and District submitted closing briefs which are included in this record as IHO #1 and IHO #2, respectively.

• • Overview This case presents a myriad of issues. Central are the Parents’ claims of a child-find violation in the 2020-2021 SY with the similar claim that the District failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2020-2021 and 2021-2022 SYs. As a remedy, the Parents seek reimbursement for tuition and transportation with respect to the 2021-2022 SY as well as compensatory education services for the 2020-2021 SY including a claim for reimbursement for the cost of three (3) evaluations.

The child-find provision of the IDEA places an affirmative duty on school districts to develop policies and procedures to identify, locate, and evaluate students with disabilities, including students in private schools, “to ensure that they receive needed special-education services.” (Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009); see 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300.111; 8 NYCRR 200.2(a). In the instant case the child-find analysis is closely related to the analysis of whether the District provided a FAPE § 1412(a)(1). “A FAPE, as the Act defines it, includes both "special education" and "related services." § 1401(9). "Special education" is "specially designed instruction... to meet the unique needs of a child with a disability"; "related services" are the support services "required to assist a child... to benefit from" that instruction. §§ 1401(26), (29).” Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017).

Regarding the “reimbursement” claim related to the 2021-2022 SY, the analytical framework is typically called a “three-prong analysis.” A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985).

Finally, there is a demand for “compensatory education” in addition to tuition reimbursement. Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mold each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

• • Background of the Case The Student began receiving special education services toward the end of the 2017-2018 SY, when he was in kindergarten, following a May 8, 2018, CSE meeting.3 During the following SY, when he was in 1st grade SY, the Parents requested a full re-evaluation of the Student due to his reading difficulties. (Ex. A-2). The CSE reconvened on January 29, 2019, to review the evaluation, but no alterations were made to the Student’s recommended services, and he continued with speech language therapy, small group, 1x weekly for 30 minutes. (Ex. 2). Several months later, at the CSE meeting held on May 13, 2019, the CSE declassified the Student, putting an end to the services he was receiving at the end of Kindergarten and during 1st grade. (Ex. 3). (Services continued until the end of 1st grade, the 18-19 SY).

3 On May 8, 2018, the Committee on Special Education (“CSE”) held a meeting in which they classified the Student as having a Speech or Language Impairment. In the Student’s Individualized Education Plan (“IEP”), the CSE team recommended the Student receive speech/language therapy (Small Group, 1 x Weekly, 30min.). (Ex. 1.1-2).

For most of the 2019-2020 (2nd grade) and 2020-2021 (3rd grade) SYs, the Student received building-level academic intervention services (“AIS”). (Ex. A-2). For much of this time, the population was responding to COVID-19. During the 2020-2021 SY, the Parents obtained various independent evaluations4 of the Student and made a referral to the CSE on or about November 2020. On March 3, 2021 (3rd grade), the CSE gathered and reclassified the Student with a Learning Disability.5 The Student’s IEP included the following recommendations: Resource Room (5:1, 1 x Daily, 40min.) and Speech/Language Therapy (5:1, 2 x Weekly, 30min.). (Ex. 4). While the CSE utilized the evaluations obtained by the Parents, the Parents disagreed with the program recommendation by the CSE (Ex. A-4) and felt that the CSE ignored the critical recommendations made by the various independent evaluators. (Ex. A-4).

The CSE reconvened on June 1, 2021, for an annual review meeting to plan for the 4th grade (2021- 2022 SY) but did not make significant changes to the Student’s program. (Ex. 5). The Parents rejected the District’s program recommendation and unilaterally placed the Student at the Private School for the 2021-2022 SY.6 (Ex. A-4). The Parents filed the complaint notice on February 17, 2022. (Ex. A).

4 The three (3) evaluations are as follows: the auditory processing disorder evaluation (dated 12/23/20); the developmental vision evaluation (dated 02/26/21); and the comprehensive neuropsychological evaluation (dated February 2021). (Ex. A-2).

5 8 NYCRR Part 200.1(zz)(6) Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.

6 The Parents did not provide the District with a ten-day notice letter, informing them of their decision to unilaterally place the Student and seek reimbursement for costs.

• • Parents’ Position The Parents allege that the District failed to provide the Student a FAPE for the 2020-2021 and 2021-2022 SYs. (Ex. A-1). In the complaint notice, the Parents list a variety of procedural and substantive violations with respect to each SY. (Ex. A.4-8).

For the 2020-2021 SY, the Parents seek compensatory education services, for the District’s violation of child-find, and then after classifying the Student in March, 2021, for inappropriate educational programming. For the 2021-2022 SY, the Parents demand tuition reimbursement for tuition and transportation to and from the Private School (Ex. A-8). The Parents also seek reimbursement for the costs of the three (3) independent evaluations of the Student. (Ex. A.8-9).

• • District’s Position The District asserts that they “overwhelmingly established the Student was offered a FAPE for the 2020-2021 and 2021-2022 SYs, recommending a program that provided the Student an educational benefit [that] was reasonably calculated to enable him to make progress appropriate in light of his circumstances.” Next, they assert that the Parents did not meet their burden of proof to demonstrate the appropriateness of the Private School. Finally, the District asserts that “the equities” do not support reimbursement and that there is no “entitlement to compensatory education.” (Ex. IHO #2).
• • My Decision I ultimately find that the District did not sustain their burden regarding the child-find allegations, or of demonstrating FAPE for either the 2020-2021 SY (March 2021, IEP) or the 2021-2022 SY (June 2021, IEP). The Parents did sustain their burden of demonstrating the appropriateness of the Private School placement.

The equities do favor the Parents regarding the 2020-2021 SY denial of FAPE, but concerning the unilateral placement (2021-2022 SY), the Parent failed to adequately inform the District of their intent to seek reimbursement. This was an error that could work a forfeiture, but I believe it was an innocent mistake by a fully engaged Parent who was simply unaware of the “rules.”

Rather than direct a forfeiture for the 2021-2022 SY and then conduct an assessment of compensatory education for the 2020-2021 SY, I take a novel approach and forego a compensatory award for the deprivation that occurred during the 2020-2021 SY, and exercise discretion to direct reimbursement for the unilateral placement for the 2021-2022 SY: tuition and transportation, despite the lack of formal notice to the District. My rationale is, in part, the practical notion that implementation of a large compensatory award is likely to be the same as the cost of tuition at the appropriate Private School placement.

Regarding the three (3) evaluations secured by the Parents that led to the appropriate placement at the Private school, I decline reimbursement for these costs. The process of obtaining an independent educational evaluation is highly regulated by statute and case law and the predicate for such an award is not developed in this record. (See SRO # 23-034) Therefore, I dismiss this claim by the Parents.

• • Student History The Student was eight (8) years old at the start of the 2020-2021 SY. Over the course of that SY, the Parents obtained three (3) private evaluations of the Student. The first was an auditory processing disorder evaluation, dated December 23, 2020. The Audiologist, who conducted the evaluation, described the Student as follows:

[The Student] is a 8-6 year old bright, alert, related male who presents with an auditory processing disorder in the areas of discrimination, figure-ground listening, auditory and temporal integration. In addition, [the Student] demonstrates a phonological processing disorder, which impacts reading, His listening comprehension is weak for this bright, alert child. (Ex. 27-7).

The Audiologist provided a long list of recommendations, which included the use of an FM system, re-classification, and classroom accommodations. (Ex. 27-8).

On February 26, 2021, the Parents obtained a developmental vision evaluation of the Student. (Ex. 23). The Developmental Optometrist noted the Student exhibits “severe binocular and accommodative vision deficits as well as severe visual processing delay in the areas of visual discrimination, visual spatial memory, visual spatial relations and laterality.” The Developmental Optometrist added that the Student’s vision deficits will “interfere significantly with [his] ability to perform at his potential with reading, writing, copying and other academic tasks, particularly as task demands increase.” (Ex. 23-2). The Developmental Optometrist advised that the Student receive a comprehensive vision therapy program to remediate his vision deficits. (Ex. 23-2).

The Parents also obtained a neuropsychological evaluation of the Student in February of 2021. (Ex. 22A file marked March 3, 2021, by District Pupil Personnel Services). The Neuropsychologist administered many objective tests.7 The Neuropsychologist diagnosed the Student with the following:

• • F.80.2 – Language Disorder (Auditory Processing Disorder – Phonological Delays)

7 In addition to several surveys and questionnaires, the Neuropsychologist conducted the following tests: Beery- Buktenica Developmental Test of Visual-Motor Integration (VMI); California Verbal Learning Test, Child Version (CVLT-C); Children’s Memory Scale (CMS); Children’s Self-Report and Projective Inventory (CSRPI) – Sentence Completion & Projective; Clinical Evaluation of Language Fundamentals, Fourth Edition (CELF-5); Comprehensive Test of Phonological Processing – Second Edition (CTOPP-2); Conner’s Continuous Performance Test, Third Edition (CPT-3); Conners’ Auditory Test of Attention (CATA); Delis-Kaplan Executive Functioning System (DKEFS), Executive Function Subtests; Developmental Neuropsychological Assessment, Second Edition (KTEA – 3); Rey- Osterrieth Complex Figure Test (RCFT); Wechsler Intelligence Children’s Scale, Fifth Edition (WISC-V); and Wechsler Individual Achievement Test – Fourth Edition (WIAT – 4). (Ex. 22-A.1-2).

• • F.81.0 – Specific Learning Disorder: Impairment in Reading Mild (Dyseidetic & Dysphonetic Dyslexia)
• • F81.81 – Specific Learning Disorder: With Impairment in Reading Written Expression, Mild (fluency punctuation accuracy, organization of written expression).

The Neuropsychologist also assigned the Student a provisional ADHD diagnosis. (Ex. 22-14). As for her recommendations, the Neuropsychologist provided the Parents with an extensive list which includes the following:

Educational

• • School Placement: [the Student] has a complex neurocognitive profile and requires a specific learning environment and an Individualized Education Program (IEP) with related services. He has very well-developed deductive reasoning abilities, with high average-to superior visual spatial aptitude as well as a history of language processing difficulties, broad based executive function challenges, and some noted fine motor coordination challenges. He exhibits weaknesses in language-based academics and meets criteria for learning disorders in reading (mild mixed dyslexia) and writing. Thus, [the Student] requires an inclusive school setting that can provide more special education support services OR a specific specialized educational setting tailored to address the needs of students with language-based learning disorders and executive function challenges.
• • [The Student] school placement must have smaller student-to-teacher ratio in order to receive far more direct and individualized attention with peers who have similar neurocognitive profiles (i.e., bright children with language-based learning disorders).
• • [The Student] must be exposed to a rich educational curriculum with grade level content that can challenge him intellectually yet support areas of learning difficulties and very specific interventions naturally embedded in the curriculum for students with language-based learning disorders and executive function difficulties.
• • [The Student’s] teachers must all be trained to use multisensory and evidenced based strategies with children who possess high aptitude yet present with learning differences such as executive function challenges and reading/writing disorders. Multisensory strategies are essential given [the Student’s] auditory processing challenges and style of encoding information (visual versus verbal).
• • Of significant importance, currently [the Student] should not be placed in any classroom setting with students who have disruptive behaviors or emotional disturbances, as this will adversely impact his own behavioral functioning and academic performance. Thus, care should be taken to place [the Student] is a classroom that minimizes distraction and provide adequate educational and social-emotional support services to address is emerging sense of academic inadequacy ("I'm not good at school"). (Ex. 22-4).

At the same time that the Parent was gathering private information, General Education Teacher #2, speaking to the deployment of the Instructional Support Team (“IST”), did not see enough progress to feel comfortable with the Student’s trajectory. Testifying on this, she stated:

It would be fair to say that was – as the rigor and expectations were increasing, he was still developing but just not at the rate that I would like to have seen him, so I wanted to make sure he got the support that he needed. (T. 462).

With this background, I now turn to the legal considerations of the IDEA. f. Legal Overview

As a foundation to this decision, I offer the legal framework of the Individuals with Disabilities Education Act (“IDEA”).

A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2nd Cir. 2012).

In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007). R.E., 694 F.3d 167 (2nd Cir. 2012).

If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). R.E., 694 F.3d 167 (2nd Cir. 2012).

• • 2020-2021 School Year
• • Whether the District violated their child-find obligations
• • Legal Standard The "child-find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; See 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). 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 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's 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., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). 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 (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225).

• • Analysis

The District bears the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the complaint. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. 16-028; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

• • Declassification First, I focus on the CSE meeting held at the end of 1st grade on May 13, 2019 (Ex. 3). At that time the decision was made to declassify the Student at the end of the 2018-2019 SY.

During the lead-up to that CSE meeting the District produced a psychological report in January of 2019. There was nothing alarming in the results, as the Student fell in either the “average” or “high average” range in most categories. (Ex. 19-5). The District also conducted a speech and language evaluation in March of 2019, which indicated the Student to be within the “average range for his age.” (Ex. 17-5). A February 5, 2019, classroom observation documented that the Student followed instructions and interacted appropriately with his peers. (Ex. 18).

By all accounts, at that time, the Parent was pleased with the Student’s progress. (Ex. 1-3) (See, IEP dated 9/4/18). School Psychologist #1 testified that the Mother was pleased with her child’s overall progress; however, there were concerns regarding his reading skills. (T. 34). School Psychologist #1 also noted that there were signs of progress with respect to the Student’s ability to spot sight words and he also became more fluent. (T. 35).

Although the report card reflects variability in performance during 1st grade, from “Needs Improvement” to “Exceeding the Standards,” the Student was progressing. (Ex.11). For example, he had achieved his speech/language goals by the end of 1st grade (Ex. 14) and the January 2019 administration of the WISC-V placed the Student squarely in the “high average range” for intellectual ability (Ex. 19.5). From the record it appears there was a consensus that the Student was no longer in need of special education as the 2019-2020 SY (2nd grade) began.

• • AIS

For most of the 2019-2020 (2nd grade) and 2020-2021 (3rd grade) SYs, the Student received building-level academic intervention services (“AIS”). (Ex. A-2). The Reading Specialist employed by the District, provided the Student building-level reading support services in a small group (with students with similar profiles) throughout his 2nd and 3rd grade school years, using research-based, multisensory programs such as PAF (Preventing Academic Failure). (T. 1054- 1056, 1068).

The Reading Specialist described the system as follows:

Well, PAF stands for Preventing Academic Failure. It's a derivative of an Orton- Gillingham program of multi-sensory phonemic-based instruction. It breaks down reading into decoding, encoding, and comprehension with a very strong emphasis on the decoding and encoding part of reading.

This program continued into the 2020-2021 SY, during which time the Student “continue[d] to grow and show progress” with the exception of “some regression after COVID, after being remote in the spring.” (T. 1056-1059).

From the District’s perspective, the Student made progress overall throughout the 2019-2020 and 2020-2021 SYs and was better able to comprehend what he was reading. In 2nd grade (2019-2020 SY), the Student was at the 14th percentile in the PAF assessments and improved to the 59th percentile by the end of his 3rd grade school year (2020-2021), signifying tremendous progress. (T. 1046-1065; Ex. 64).

• • RTI Not A Substitute For Special Education Upon closer analysis, I am cautious in evaluating the District’s AIS program for this Student. The results of the Gray Oral Reading Test-5 (GORT-5) and the Kaufman Test of Achievement, Third Edition (KTEA-III), (norm-based tests) do not support the optimism of the Reading Specialist. Many subtests are scored in the “below average” range. (Ex. 25-January, 2021 administration by Special Education Teacher #2).

During cross-examination the same Reading Specialist offered a different perspective regarding the Student’s reading ability: she stated that the Student “certainly showed evidence of weakness in his encoding and decoding skills.” (T. 1280). In fact, from October 2020 through March 2021, the Student only increased from the 52nd percentile to the 59th percentile. (Ex. 64 -2). Rather than signifying “tremendous progress” (District brief p. 3), this data demonstrates a marked slowing of progress. I also note that due to COVID-19, the classroom was a combination of synchronous to asynchronous (T. 1063-1064), and later, the frequency of reading services was reduced from three

(3) times per week to two (2) times per week. (T. 1064-1065).

While the District may contend that Response to Intervention (“RTI”) protocols were in place, an RTI process does not replace the need for a comprehensive evaluation. See, Greenwich Bd. Of Educ. v. G.M., 2016 WL 3512120 @ 8 (D. Conn., June 22, 2016); Letter to Zirkel, 47 IDELR 268

(OSEP 2007).

• • Expectations Quickly Rise in 3rd Grade I am informed by the testimony of the Neuropsychologist who explained that kids in kindergarten through 2nd grade are learning to read; however, by the 3rd grade, they are expected to know how to read, and the curriculum shifts such that they are now reading to learn. (T. 1699-1700). The Neuropsychologist explained that, in a classroom setting, 3rd grade and beyond, children with dyslexia generally will struggle a lot more if they haven’t received interventions for dyslexia because now the reading demands increases significantly. (T. 1699-1700).

What transcends the District’s testimony on progress in the AIS environment, were the persistent concerns of the Parent. Since, at least Kindergarten, as a parent, she had been trying to provide “extra support” at home to reinforce what the student was learning at school. (T. 1870). For example, the family hired a tutor during the 1st grade who came to the home once a week to review reading strategies and provide extra support at home. (See, T. 1883).

Like many parents, this Parent was also engaged with the District on a personal level: “[F]or 1st grade it was [a teacher] who I also knew very well... It seemed like there was this concern, loose concern, about [the Student’s] reading and his academics. I spoke to [her] very early on. She was aware of my concerns. We discussed it. And... she said, I'll keep a close eye... [B]efore you know it we're into January having discussions about what we need to do for next steps.” (T. 1871-1872).

The Parent was consistently attending the school meetings. At the January CSE meeting (in 1st grade before the declassification occurred.) “... there was actually no concern on [the CSE’s] part for any learning disability or delay which was very confusing to me at the time because it was very reassuring as a parent to sit in a meeting where I was very concerned about his reading and his academics but then when they reported to the testing and explained the testing, they stated that he was high average, above average IQ. He is exceptional in his work. He's a lovely kid. So I left the meeting confused because when I said if he needed to be left back they were like, absolutely not.” (T. 1878).

Early on in 2nd grade, the Student had moved to another building in District and the Parent was familiar with the teacher who had taught a sibling of the Student. At that time the Parent informed the teacher of her concerns for the Student’s reading. (T. 1885). As the SY progressed the Parent sent an e-mail and the response suggests that the teacher credited the Parent’s concerns:

The curriculum is becoming more challenging as the year progresses and I am aware of his needs in order to complete some assignments. More in the subject of ELA. In fact, I just finished writing up an IST report for [the Student] yesterday. I wanted to bring my academic concerns to our team to see if we could recommend other strategies. Once the meeting takes place and we have a plan, and I will speak with you at that time. In the meantime, I will keep a close eye on [the Student] in here and put incentives in place that might make him less worried. (Ex. B)

As the 2nd grade continued, the Parents continued to provide extra reading support at home (“every night for 30 min.” (Ex. C), and the Parents switched [the Student’s] tutor to a reading specialist (T. 1892).

As early as March of 2nd grade the Parents began communication with the Neuropsychologist and became aware of the Audiologist. At about the same time “the whole world shut down for COVID..

. then everything went on pause.” (T 1894). Regarding the months following the pause the Parent relates a renewed level of understanding:

But I will say, those three months home working with [the Student] made it very, very clear that he was having difficulty. So, it was my first opportunity to really hear it on the virtual platform in the setting of a teacher/student teaching. (T. 1895)

Earlier in the summer the Parent printed out the 2nd grade “Foundations” curriculum and began to work with the student to get him ready for 3rd grade. (T. 1909). Moving forward to the beginning of 3rd grade, the Parent reports her bewilderment at a score of zero for an early 3rd grade spelling test. (T. 1912-1919 & Ex. 33-57); She summarizes: “[A] zero in a spelling test is like completely unacceptable in a child. And there should be flags everywhere saying, what did we miss here?”

Soon after the Parent requested that the evaluation process begin. (Ex. 35 e-mail dated November 17, 2020 & T. 1918-1919). On March 3, 2021, the CSE reclassified the Student with a Learning Disability.

As the forgoing illustrates, there was no shortage of conflicting opinions about the programming of this student, but having reviewed the record, I find that the District overlooked clear signs of disability. I rule for the Parent on the issue of child-find and credit the Parent’s determined efforts to bring light to the educational needs of the Student.

The Parents have also raised a procedural claim with respect to child-find. Specifically, the Regulations of the Commissioner of Education require that the initial evaluation must be completed within 60 calendar days of receipt of consent. 8 NYCRR 200.4(b)(1). The Regulations require school districts to obtain consent for evaluations within 10 school days after the initial referral is submitted. 8 NYCRR 200.4(a)(2)(iv). The District failed to obtain consent for evaluations within the 10 school days. The District delayed the evaluation process, and the first evaluation did not occur until January 12, 2021. (Ex. 25). The CSE meeting was held on March 3, 2021, which was also held beyond the timelines allowed by the regulations.

With respect to this argument, I also side with the Parents. What may appear to be a de minimis procedural violation, is significant, when setting the “knew, or should have known” date, back to January/February 2020, as I do. (See, Ex. B with the acknowledgement of problems at school – “The curriculum is becoming more challenging as the year progresses and I am aware of his needs in order to complete some assignments”). By adopting this January 2020 date as the starting point, services should have been in place at least by the beginning of the 2020-2021 SY, even with the built-in delays of the regulatory timeline (10 days to obtain consent followed by 60 days to evaluate) and the imposition of COVID-19 modifications. Instead of moving forward from the start of the 3rd grade, the District continued to rely on the IST and the non-mandated AIS services.

A small example of the District’s recalcitrance on this front is revealed when School Psychologist #2 testified. In response to the Parent’s referral, she provided the option of holding an IST meeting first, instead of starting the special education process. (T. 650-651). The Parent informed School Psychologist #2 that the Parent would like to proceed with the special education evaluation process. (T. 650-651). While the record may be mixed regarding progress, there is no rational justification for deciding not to evaluate the Student when the Parent, and at least some educators, were aware that the Student was clearly struggling.

• • Conclusion IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). The Parent has demonstrated that the District did not attain this goal, at least since September 2020. In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

After a review of the record, I have determined that the District’s procedural violation did impede the Student’s right to a free and appropriate public education and caused a deprivation of educational benefits (See the conclusions from the neuropsychological evaluation, for example (Ex. 22A). While I do not find that the District’s actions significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, 20 U.S.C. § 1415(f)(3)(E)(ii), I nevertheless conclude that there was a denial of FAPE since September 2020. (See Part V. below where I address compensatory education.)

• • Whether the District failed to provide the Student a FAPE for the 2020-2021 SY (March 3, 2021 IEP) and the 2021-2022 SY (June 1, 2021 IEP)

There are two relevant CSE meetings in this proceeding. The first, I address at this point of the decision. It occurred on March 3, 2021, relative to the remaining weeks of the 3rd grade SY (2020- 2021). The second occurred on June 1, 2021, relative to the upcoming 4th grade SY (2021-2022). I will discuss that in the next part of this decision.

Significant to my decision, the District was in possession of the Parents’ independently obtained neuropsychological evaluation, dated February 20, 2021. (Ex.s 4-2, 5-2, & 22-A). The report was later expanded (Ex. 22); however, even in its shortened form, it is useful in that it describes the evaluation procedures; relevant background information; a discussion of behavioral observations; a comprehensive diagnostic summary with impressions; and recommendations to address educational needs and classroom management. (Ex. 22A). The Neuropsychologist also participated in the March meeting and provided her input. (Ex. 4-1 & T. 658-659).

• • Legal Standard Detailed procedural provisions lie at the heart of the IDEA.8 20 U.S.C. §§ 612 and 615; 34 C.F.R.

§§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). But also, the substance

8 In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007. of IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances.9 Endrew F. v. Douglas Co. School Dist. Re- 1, 137 S. Ct. 988 (2017).

• • Analysis

I first look to the Parents’ allegations10 to determine the scrutiny to apply in evaluating the District’s presentation regarding the March 3, 2021 IEP. This is the backdrop in which I weigh the 9 This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

10 The Parents’ complaint is explicit about the following issues, among others:

• • The District failed to conduct a reading evaluation.
• • The District failed to conduct an occupational therapy evaluation to determine deficiencies in [the Student’s] fine motor and coordination skills.
• • The evaluations conducted by the District were inappropriate and sufficient.
• • The CSE failed to include sufficient information relating to [the Student’s] deficiencies in various areas in the present level of performance section of the IEP.
• • The CSE failed to describe the social/emotional difficulties [the Student] was experiencing as a result of the District’s failure to provide any special education services for [the Student] from the beginning of the school year until the March CSE meeting.
• • The CSE failed to recommend any behavioral strategies or plans to address [the Student’s] social/emotional issues.
• • The academic goals contained in the IEP are inappropriate to address [the Student’s] deficiencies in various areas.
• • The speech and language goals contained in the IEP are insufficient and inappropriate.
• • The CSE failed to recommend goals relating to [the Student’s] executive functioning difficulties.
• • The reading goals contained in the IEP are insufficient and inappropriate.
• • The CSE failed to recommend appropriate services to address [the Student’s] Auditory Processing Disorder.
• • The CSE's program recommendation of a one-time daily resource room program for [the Student] was inappropriate and insufficient to address [the Student’s] academic and executive functioning deficiencies.
• • The one-time daily resource room was specifically inappropriate to address [the Student’s] reading and writing deficiencies.
• • The CSE failed to recommend any special education supports to address [the Student’s] writing deficiencies.
• • The CSE failed to recommend appropriate accommodations and classroom modifications consistent with the recommendations made by [the Developmental Optometrist].
• • The CSE failed to recommend appropriate services to address [the Student’s] Auditory Processing Disorder.
• • The CSE failed to recommend appropriate services to address [the Student’s] ADHD related issues.
• • The CSE failed to recommend counseling services to address [the Student’s] social/emotional issues that resulted from his academic difficulties.
• • The CSE failed to recommend occupational therapy services to address [the Student’s] deficits in fine motor and coordination skills.

District’s recommendations, mindful that the District has the burden of proof. I now look to the testimony of the District’s witnesses to assess the validity of the District’s recommendations and determine whether the District has met their burden in proving that they provided the Student a FAPE. The attendees at the March 3, 2021 CSE meeting were as follows:

• • CSE Chairperson #2
• • School Psychologist #2
• • General Education Teacher [not a witness]
• • Special Education Teacher #2
• • Speech Therapist
• • Mother
• • Father
• • Neuropsychologist
• • CSE Chairperson #2 – Testimony CSE Chairperson #2, who is a certified school psychologist, served as the CSE chair during the 2020-2021 SY. (T. 483). She first met the Student during the 2020-2021 SY when he was referred for an evaluation by the Parents. (T. 492). She stated that it was standard practice for evaluations to be conducted, provided to the CSE team, and fully reviewed by said team prior to the date of the meeting. (T. 500). She testified that the meeting in this case would have begun with the Parents’ summary of the Student’s strengths and weaknesses and would then have progressed to a review of the evaluative materials. (T. 503). Goals would then be formulated; in this case these were limited in number due to the short length of the remainder of the SY. (T. 514). Despite learning that the Student’s parents sought a classroom change and new services to better serve him, the CSE Chair testified that the committee declined to move him into a new classroom and implement
• • The CSE failed to provide an opportunity to the Parents to meaningfully participate in the CSE process. The Parents' concerns were not fully considered and addressed.
• • The District's placement in the resource room program was inappropriate for [the Student].

The District's failure to provide appropriate program, placement and supports resulted in [the Student’s] failure to make progress during the 2020-2021 school year. (Ex. A.4-6) updated services because their general policy was not to move students into new classes during a school year. (T. 577-79).

Importantly, having new recommendations offered by the Neuropsychologist in advance of the March meeting, the CSE Chair declined to integrate them into the IEP because the school did not plan to amend the IEP until the June meeting. (T. 589). The CSE Chair also testified that despite knowing the Student suffered from dyslexia, the IEP only offered him services in the resource room and did not provide him services or a special education teacher in the general education classroom. (T. 611).

• • Special Education Teacher #2 - Testimony In her capacity as a resource room teacher, she was responsible for conducting student evaluations. (T. 789 & 795). She performed the Student’s educational evaluation in 2021. (T. 797). Special Education Teacher #2 utilized the full battery of the Kaufmann Test of Educational Achievement (“KTEA”) along with the Gray Oral Reading Test (“GORT”) to evaluate the Student. (T. 798- 800). The addition of the GORT was made due to the Student’s low-average scores across the dimensions of the KTEA. (T. 814). These evaluations went smoothly, and the Student was “very compliant.” (T. 805). She stated that her primary concern was the Student’s weaknesses in reading. (T. 801-802). A variety of speech language deficits were revealed as a result of testing. (T. 822- 828). Special Education Teacher #2 testified that these weaknesses were appropriately addressed by the March 3, 2021 IEP. (T. 834). Her rationale in support of her opinion that the IEP was appropriate was that “reading” was not assessed “when we’re thinking about content area subjects like science, social studies and even math.” (T. 848). While this may be true, my overall impression was that her opinion was not helpful to understand how the IEP was addressing weaknesses in reading.

A point of contention was the question of whether the Student would have benefited from extra support provided by a special education teacher present in the classroom. She evaded the question multiple times by reiterating the pat answer that the program offered by the District was appropriate. (T. 851-861). This concludes the Special Education Teacher #2 presence in the record.

• • Speech Therapist #1 – Testimony Speech Therapist #1, who conducted the initial speech and language evaluation (Ex. 42), was present at the March 3, 2021, CSE meeting. (T. 1572-1573). Due to the Student’s struggles with listening and comprehension, Speech Therapist #1 administered the Comprehensive Assessment of Spoken Language, which she refers to as the CASL-2. (T. 1575-1576). She noted that she was surprised the Student did so well on the phonological awareness portion after he struggled with the phonological processing part of it. (T. 1582). However, she still noticed some difficulties despite him scoring in the average range. (T. 1582).

Regarding her role at the March 3, 2021, CSE meeting, Speech Therapist #1 provided the following testimony:

I report my informal and formal measures. Basically, what I mentioned to you, how he performed, you know, his behavior when he was with me, the scores that I got on the testing and anything else that I might have noticed that's what I report on. (T. 1596).

Speech Therapist #1 could not recall if there was any specific discussion regarding her report and assessments. (T. 1596-1597). However, she was able to provide a brief overview of the discussion at the meeting:

Well, we were discussing that his performance on the testing that I gave him he actually scored very well, but we also discussed the private evaluation reports that were done as well, and given all that information, I really did feel that he required speech as a related service.

There was some discussion too of that -- I actually am not sure if we discussed

-- I think we did discuss at the meeting [the Program] which is a web-based program to work on improving his language memory and processing skills but then I believe that the chairperson told me that's something you can do outside of this meeting. It's not really part of the meeting. So, I'm sorry, I don't really recall exactly what was said at that meeting. (T. 1597-1598).

The CSE ended up recommending speech language twice a week for thirty minutes in a therapy room as a group. When asked why the Student was not receiving individual speech language, Speech Therapist #1 could not recall but mentioned that typically only children with “very, very severe” disabilities receive such services. The CSE determined that the Student is capable of working in the group setting, hence their recommendation. (T. 1598). She went onto discuss some of the Student’s goals which pertained to improving phonemic awareness, among other things. (T. 1599-1602). When asked if the goals adequately addressed the Student’s deficits, Speech Therapist #1 answered:

They do. They do address the difficulty. Do I think adequate? I think there were other things put in place. I know that the Resource Room was an area that he was going to work on the decoding and more phonemic awareness skills. I know also that he had a subscription to an account on [the Program] which was going to be done three times a week at home and that was also addressing phonemic awareness skills.

There was also a personal FM system that was being trialed in the classroom and that was going to also address his, you know, difficulty he had in speech and language. (T. 1602-1603).

Additionally, Speech Therapist #1 stated that the speech language recommendation was appropriate to supplement the Program in meeting the Student’s needs. (T. 1603).

On cross-examination, Speech Therapist #1 was asked whether the FM system was helpful; however, she could not recall. (T. 1619). She noted that she was aware of many of the Student’s struggles, specifically his lag in processing skills, which she personally observed. (T. 1621).

Speech Therapist #1 also mentioned that she was familiar with the Neuropsychologist’s dyslexia diagnosis. (T. 1627). When asked if she observed any signs of dyslexia, Speech Therapist #1 answered:

I'm not sure if I can really answer that. I'm not an expert in dyslexia, but I know children with dyslexia often have difficulty with decoding and that's really kind of tied into the phonemic awareness difficulty that he had so... (T. 1628).

Later in her testimony, Speech Therapist #1 acknowledged that being in a larger group could impact the Student’s listening comprehension more than his ability to be able to comprehend speech in a small group setting. (T. 1632). She could not recall why the Student was recommended a group setting for his speech language services. (T. 1632). This concludes Speech Therapist #1’s testimony.

• • School Psychologist #2 – Testimony Regarding her preparation for the CSE meeting held on March 3, 2021, School Psychologist #2 testified “I prepared by conducting part of the psychological piece which was the classroom observation. I went into the classroom and observed. I did the rating scales.” (T. 656). She then described her role at the meeting:

So, my role at that meeting is to report on the evaluation that I conducted. I am listening to all the members as they are reporting on their evaluations, as well as the teachers' feedback and working together with the committee to determine if the student is classified or not and then based on what I see in my observation, as well as what the teachers have spoken or observed, helping formulate what types of accommodations might be appropriate. (T. 657-568).

School Psychologist #2 noted that she received and read the neuropsychological evaluation and the CSE members had a copy before the meeting. (T. 659). The Neuropsychologist, who attended the meeting, reported her findings. (T. 659). The Parent and the Developmental Optometrist—who also attended the meeting—voiced their concerns and what they observed. (T. 659). School Psychologist #2 also shared her observations, from both the classroom and the rating scales. (T. 659).

When asked if anything stood out to her at the meeting, School Psychologist #2 replied:

Parents' concern about [the Student’s] academics, his language. That will always stand out at a meeting for me, the concern about the reading and writing and the language piece. The different evaluations that were conducted, that would stand out. The neuropsychological, it was not a completed report we had at the time, but [the Neuropsychologist] gave her diagnostic impression so that stood out. (T. 660).

School Psychologist #2 stated that she first met the Student, when he was in 3rd grade, after the Parent reached out to her with concerns regarding the Student’s speech language skills and his ability to read and write.11 (T. 648). The Parent referred the Student to the CSE. (T. 648). School Psychologist #2 testified that she was part of the CSE process and chaired his annual review. (T. 648). She mentioned that the Parent informed her that the Parent had an auditory processing evaluation and was “in the process or had” a vision therapy report. (T. 649). School Psychologist

11 School Psychologist #2 presumably was referring to the 2020-2021 SY, which is when the Student would have been in 3rd grade.

#2 could not recall whether the Parent shared the results of the evaluations with the CSE. (T. 649). She mentioned that, at the time, the Parent was pursuing additional evaluations, specifically a neuropsychological evaluation. In response, the District went on to perform a social history update, behavior rating scales (BASC-3), classroom observation, educational evaluation, and a speech language evaluation. (T. 652).

Coming back to her classroom observation, the School Psychologist reported:

I observed that [the Student] was a little slow to start to put materials away and transition to the next activity but then he was able to do so on his own. They were doing a non-fiction activity. I observed him providing a correct response when the teacher asked a question but then I noticed some off-task behavior such as taking the scissors and cutting out pieces of paper.

I noticed he responded to teacher redirection after that. I also noticed at one point he did look around the room and I did notice he needed some teacher prompting to elicit a response to him. And I observed him when it was time to break up into a smaller group of peers that he went to the group without his materials and then went back to get his materials and joined his group. I noticed he needed assistance from the teacher on what to jot down when they were working …

[S]ometimes he was on task and sometimes he was off task. When he was off tasks, he was able to respond to maybe a repeat of a direction from the teacher or refocus. (T. 662).

Academically, School Psychologist #2 mentioned that the Student had difficulty focusing but responded to the classroom teacher’s accommodations. In math, the Student was performing within age level expectation, but needed support in reading and writing. (T. 663).

In the classroom, the Student’s biggest struggles were in the areas of hyperactive behavior, attention problems, and learning problems. (T. 665). These behaviors include difficulty staying seated, acting without thinking, and being in constant motion. (T. 666). Additionally, the Student has a short attention span and is easily distracted. (T. 666).

At the CSE meeting, the team reviewed School Psychologist #2’s classroom observation and the BASC-3. (T. 667). When asked if the CSE reviewed any additional documents, School Psychologist #2 could not recall. (T. 668). She noted that the team did not review the neuropsychological evaluation because the neuropsychologist was present. (T. 668-669).

• • The Parent – Testimony During her testimony, the Parent recalled that she had been present at the March 2021 CSE meeting. She also recalled the Neuropsychologist’s presence within the meeting and her submitting her summary report that day. (T. 1970). The Parent remembers the Neuropsychologist’s report “mention[ing] right away that [the Student] needed a specialized program targeted to dyslexia... I mean, she has a very thorough recommendation list there, but she was very clear that [the Student] needed specialized attention in his reading and learning and auditory processing.” (T. 1970-1971).
• • Neuropsychologist – Testimony The Neuropsychologist recommended in her evaluation the Student specifically be placed in “an inclusive school setting” that can provide more special educational services, or a “specific specialized educational setting” designed to address the needs. She stressed the need for a smaller student-teacher ratio, direct and individualized instruction, specific interventions to get him on grade level curriculum and a classroom void of disturbances. (Ex. 22A-15).

The Neuropsychologist expressed sharp disagreement with the propriety of the District recommendations, and she offered specific testimonial bases for that disagreement. For example: “... resource room did not include an evidence-based trained reading specialist that would be able to give [the Student] individualized attention that he required.”; “... insufficient level of intervention...”; “... not being evidence-based.”; “...not being individualized enough.”; Class size “.. needs to be smaller.”; “It needs to include multi-sensory all day long.”; Goals are not sufficient- “These are non-specific and insufficient.” (T. 1725-1730) She testified: “... my recommendation that I made at the CSE meeting was for placement in a specialized school setting.” (T. 1724).

When asked whether the Private School was an appropriate placement and properly correlated to her recommendations, the Neuropsychologist stated that her “opinion is that it is an appropriate educational setting and that it would check off essentially all of my individual recommendations for his educational program in the report.” (T. 1736).

By way of background, the Neuropsychologist performed a comprehensive neuropsychological evaluation of the Student in February 2021. She holds a Bachelor of Arts in Psychology, and a Ph.D in Clinical Psychology, and has been in private practice since 2019. (T. 1649 – 1651). She typically works with children and families and has performed approximately more than 200 neuropsychological evaluations throughout her career. (T. 1651 & 1654).

The Neuropsychologist first met and evaluated the Student in February of 2021. She conducted clinical interviews with the Student’s parents. She spoke with the Student’s tutor and collected collateral educational records from teachers. She reviewed additional medical records and conducted a series of one-on-one testing to evaluate the Student over the course of two days before delivering her comprehensive evaluation in March of 2021. (T. 1659-1660). She made a series of observations, diagnoses, and recommendations based upon a specific battery of tests picked to properly evaluate the Student. (See in full in Student History).

The Neuropsychologist administered the Wechsler Intelligence Childrens Scale Fifth Edition. The test concluded that the Student is an intellectually gifted child and that his full IQ scale was 112 (on the high end of the average range). (T. 1665). The Student presented a discrepancy between his strong nonverbal cognitive functioning ability and his average verbal comprehension scores. That discrepancy is considered clinically significant. (T. 1665). There were also discrepancies between his working memory and processing speed relative to his nonverbal cognitive functioning. The Student exhibited variability in his attention and executive functioning. His attention problems became far more pronounced when he was required to take in more visual and auditory information, as well as when he was required to work independently. (T. 1666). He had symptoms of what looked like ADHD and was given a provisional diagnosis. (T. 1672). The Student’s auditory processing was a significant concern. The Audiologist’s evaluation had previously diagnosed him with a central auditory processing disorder. The disorder significantly affected his functioning related to academics. The Student suffers from ongoing difficulties with phonological awareness. (See in full in Student History).

• • Conclusion Without serious explanation, the District adopts the proposed classification (by the Neuropsychologist) of Learning Disability but rejects the recommended strategy (by the Neuropsychologist) to address the identified deficits. (Ex. 4). I therefore find that the District did not discharge their burden to demonstrate FAPE in the program and services recommended immediately following the March 2021 CSE meeting. (See Part V. below where I address compensatory education.)
• • 2021-2022 School Year – Three Prong Reimbursement Analysis
• • Prong I: Whether the District failed to provide the Student a FAPE (June 2021 IEP)
• • Legal Standard The procedural and substantive provisions are laid out above in the FAPE analysis for the 2020- 2021 SY. (See page 20-21 of this decision).
• • Analysis

As I did in my earlier FAPE analysis of the 2020-2021 SY, again I look to the Parents’ allegations in evaluating the District’s presentation.12

• • 12 The District failed to recommend extended school year services to [the Student].
• • The District failed to conduct reading evaluation to determine Luca's reading deficiencies. The Commissioner's Regulations require school districts to conduct "other appropriate assessments or evaluations." 8 NYCRR 200.4(b)(l)(v). The parents have been raising concerns about Luca's reading deficiencies for some time. However, the District never conducted an in-depth reading evaluation to determine [the Student’s] reading deficiencies.
• • The District failed to conduct an occupational therapy evaluation to determine deficiencies in [the Student’s] fine motor and coordination skills.
• • The June CSE failed to include sufficient information relating to [the Student’s] present level of performance in the various academic areas.
• • While the CSE noted that [the Student] has been diagnosed with Dyslexia, the CSE failed to provide appropriate services to address issues arising from [the Student’s] diagnosis of Dyslexia.
• • The CSE failed to provide an opportunity to the Parents to meaningfully participate in the CSE process. The Parents' concerns were not fully considered and addressed.
• • The CSE's program recommendation of the resource room program for the 2021-2022 school year is inappropriate. [The Student] requires support in reading and writing throughout the school day in every subject and academic area. Providing a minimal one-time resource room program does not sufficiently address his needs.
• • The CSE failed to recommend appropriate services to address [the Student’s] Auditory Processing Disorder.
• • The CSE failed to make recommendations consistent with [the Neuropsychologist’s] recommendations in the neuropsychological evaluation.
• • The CSE failed to recommend appropriate levels of speech and language services for [the Student].
• • The CSE failed to recommend specialized reading services for [the Student].
• • The District's reliance on the building level academic intervention services to address [the Student’s] reading difficulties was improper and violated [the Student’s] rights to a FAPE.
• • The CSE failed to recommend any special education supports to address [the Student’s] writing deficiencies.
• • The CSE failed to recommend any special education supports to address [the Student’s] math deficiencies.
• • The academic goals contained in the IEP are inappropriate and insufficient.

I now look to the testimony of the District’s witnesses to determine whether the District has met their burden in proving that they provided the Student a FAPE. The attendees at the June 1, 2021 CSE meeting were as follows:

• • CSE Chairperson #2
• • (General Education Teacher) [Not a witness]
• • Resource Room Teacher
• • Speech Therapist
• • Mother
• • CSE Chairperson #2 – Testimony While CSE Chairperson #2 was present at the 2021-2022 SY CSE meeting, her testimony mainly concentrated on 2020-2021 SY from March on. (See CSE Chairperson #2 – Testimony in Section III). She did acknowledge that the Parent’s preference was for more “one-to-one” at the March 2021 CSE meeting. (T. 576). A compromise was made to move forward with group services and reconvene for the annual review for the next year with “more information.” (T. 576).
• • The reading goals contained in the IEP are inappropriate and insufficient to address [the Student’s] specific reading deficiencies.
• • The speech and language goals contained in the IEP are inappropriate. The CSE failed to include executive functioning goals in the IEP.
• • The progress measurement criteria recommended for each of the goals contained in the IEP is inappropriate.
• • The accommodations and classroom modifications recommended in the IEP are insufficient and inappropriate.
• • The CSE failed to recommend supplementary aides/accommodations and classroom modifications in the IEP consistent with [the Neuropsychologist’s] and [the Audiologist’s] evaluations.
• • The CSE failed to recommend appropriate services to address [the Student’s] ADHD related issues.
• • The CSE failed to recommend appropriate behavioral services or plans in the IEP.
• • The CSE failed to recommend counseling services to address [the Student’s] social/emotional issues that arise from his academic and executive functioning difficulties. [the Neuropsychologist’s] noted in her evaluation that [the Student] is at a very high risk for developing anxiety, depression and school refusal issues without more concerted efforts to address his notable learning and attention difficulties.
• • The CSE failed to recommend occupational therapy services to address [the Student’s] deficits in fine motor coordination skills.
• • Resource Room Teacher - Testimony The Resource Room Teacher oversaw the Student in the Resource Room during the final weeks of the 2020-2021 SY. (T. 1131, 1149 – 6 weeks). She worked with the Student—and his classmates generally—on developing his written expression skills as well as reinforcing paragraph structure, mechanical writing skills, reading fluency and reading comprehension. (T. 1087). While the Resource Room Teacher was generally supportive of the IEP goals and testified that the Student progressed through her tutelage of him; she did state the Student faced continuing challenges throughout the year. The Resource Room Teacher testified that the Student struggled with focus throughout and had to be redirected to his tasks. (T. 1136-37). She also testified that the Student had difficulties processing information, stating:

I think he needed – from what I remember, he needed information repeated. There were times where I had to rephrase information repeated. There were times where I had to rephrase information... He required some wait time to process information, yes. It was also an accommodation on his IEP. (T. 1140).

The Resource Room Teacher also noted that several of the Student’s struggles and deficiencies she mentioned throughout her testimony – reading fluency, comprehension, decoding, etc. – were not reflected on the IEP goals from March of 2021. (T. 1148). She testified that these were skills specifically needed to be reinforced and targeted throughout her work with the Student. (T. 1148- 49). At the June CSE meeting, the Resource Room Teacher was the sole advocate to increase the Student’s high frequency spelling word percentage goal to 90% despite the CSE previously having the percentage goal at 60-75%. (T. 1152-1155).

Despite her positive endorsement of the Student’s IEP and goals, the Resource Room Teacher eventually conceded in her testimony that the Student was functioning below his grade level:

Q: From your understanding of his deficiencies in reading and writing, would you agree that he was functioning lower than the grade level that he was in, lower than the 3rd-grade level?

A: He had weaknesses, so yes, there were areas that he was functioning lower. Obviously, he has an IEP, and has resource room services. (T. 1164).

• • Speech Therapist #2 – Testimony This witness started working with the Student on or around March 2021 following the CSE meeting that same month. The first thing she did was review his IEP, evaluations, goals and then address how she was to target the goals. (T. 1201). From her perspective, the Student was not having any problems with his speech goals, and he was progressing nicely during the Spring of 2021 (T. 1220). For the Speech Therapist #2, the Student was doing well in the small group setting. She implemented a strategy of “whole body listening” (T. 1223), and for her, she did not notice any focusing or attention issues.” (T. 1224). On cross examination she did acknowledge the following:

It's possible in a bigger classroom setting that someone with auditory processing could easily be distracted by you know, noises around them. They could have difficulty following directions in the classroom. They could have difficulty following along with whatever, you know, the teacher is presenting, whatever information is presented to them, you know, they might have difficulty in that area. (T 1225).

• • The Parent – Testimony The Parent also testified that she had participated in the June 2021 CSE meeting. (T. 1981). During that meeting she expressed to the committee her concerns and frustrations about the Student’s programming:

... I could say the mental state I was in at that point was that we finally got to a place where [the Student’s] needs were very clear, fairly delineated by multiple specialists. The school was now involved, and an IEP was reinstated. There were some resources provided and now we’re at the end of another year so now he is in 3rd grade and a lot of the reading that I had done with the dyslexia is that it’s captured, the earlier it’s provided the support it needs it is remediable... I was starting to get, you know, very aware of what was going on and I wanted to get a sense of what the next steps were so at that meeting we had a discussion and what came about at the meeting was that he was given the same services he was in the March meeting so no change at all for what [the Student] was needing. (T. 1981-1982).

The Parent expressed her dismay with the recommendations of the CSE:

I was not okay with the recommendation at all because I didn’t understand. I kept asking for things like maybe he needs a one-to-one classroom or whatever, a small setting classroom, and everybody says he does well in a small setting. Maybe he needs resource room more than 40 minutes a day. I don’t even know what’s offered through the school. I asked for the ICT again because it was denied previously, and then I asked for it again giving it some time to kind of develop and see if that’s what everybody recognized his needs were and I was denied that. All they kept saying is that we wanted to be as least restrictive as possible and I did not understand what that meant in the context of what we’re dealing with and I vividly remember saying to them, why are we being least restrictive and not proactive? We have a student that has a learning gap. We know what the learning gap is. Not only that it’s a very well understood learning disability that has evidence-based approaches to it that can be remediated, and it was not even considered. (T. 1982-1983).

• • Conclusion Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet the Student’s individualized needs. From this record I find that the June CSE lacked rigor in making their recommendations. It is noteworthy that the justification for the March IEP, and its unambitious tenor, was that the more complete presentation would be made for the full year IEP, yet to come, in June. (T. 589). But there was no substantial change at the June CSE meeting. (Compare Ex.s 4 & 5).

During testimony, the Neuropsychologist, who did not attend the June CSE meeting opined the following: “As far as I'm concerned, the recommendation for resource room in June was inappropriate, just as inappropriate as it was in March and would remain inappropriate for this kind of complex profile because this is a brain-based profile not a circumstantial profile.” (T. 1732). Given all of the above, I rule for the Parents on Prong I of the 2021-2022 SY analysis.

• • Prong II: Whether the Parents established the appropriateness of the Private School
• • Legal Standard Having determined that the District failed to offer the student a FAPE in the least restrictive environment (“LRE”) for the 2021-2022 SY, the next inquiry focuses on whether the Parents’ unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010]. The Second Circuit has clearly stated:

... [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

• • Analysis

I now look to the testimony of the Parents’ witnesses to determine whether the Parents have met their burden in proving that the Private School is an appropriate placement for the Student.

• • Audiologist – Testimony The Audiologist first met the Student in December of 2020 for an auditory processing evaluation. She noted that he been recommended for suspected deficiencies with working memory, auditory processing and visual spatial skills. The Audiologist noted that the Student struggles with reading because he’s challenged with developing proficiency with phoneme to grapheme correspondences. She also writes that his speaking and spelling skills are below average; additionally, his “expressive language lacks efficiency and getting to the point.” (Ex. 27-1).

The Audiologist concluded that the Student has a temporal processing disorder,13 which she determined using both the Gap Detection Screening Test and the Frequency Pattern Test. The Student passed the Screening Test. While the Student did well on the humming portion of the test, he could not execute the verbal task, which indicates an integration problem. These confirmed the presence of an auditory processing disorder. (Ex. 27.4-5). The Audiologist concluded that the Student has a phonological processing disorder,14 which she measured with the Phonemic Synthesis Test and the LAC-Lindamood Auditory Conceptualization Test. The Student performed

13 A measure of auditory processing that involves the sequencing and timing of auditory stimuli, which are important in discrimination, comprehension of the spoken message and response accuracy. (Ex. 27-4).

14 This area of phonemic awareness measures ability to discriminate, blend and manipulate sounds it words. (Ex. 27- 5). above the criterion for his age. However, on the Auditory Conceptualization Test, the Student scored a 49, which was below the 3rd grade criterion of 71. This indicated the Student possessed deficient decoding skills, supporting the presence of a phonological processing disorder. (Ex. 27- 5). The Audiologist concluded that the Student does have a reading comprehension/fluency deficit, placing in the 37th percentile after scoring a 9 on the Contextual Fluency subtest of the Test of Reading Comprehension. While the Audiologist describes this as an average score, she does state that the “vast amount of errors and omissions suggest a decoding accuracy and/or a visual tracking issue.” (Ex. 27. 5-6). The Student also possesses an auditory comprehension deficit, scoring in the 21st percentile with a raw score of 88, demonstrating a low average ability to understand the spoken message and a problematic response accuracy to inferential questions. (Ex. 27-6). The Student does not present with an Auditory Short-Term Memory Deficit. (Ex. 27-6).

In her written report, the Audiologist made a series of recommendations designed to address several aspects of the Student’s deficiencies. Speaking on his classroom needs, she wrote the following in her report:

[The Student] should qualify for re-classification as Speech-Language Impaired student given the results on present testing... Given [the Student’s] figure-ground and auditory integration issues, classroom and testing accommodations are needed to include preferential seating, up front close to the teacher, away from distractions; extended time for testing, given in a quiet area, pre-teaching, study notes and guides ahead of lessons. Repetition, explanation and clarification are needed. He needs to have lengthy information broken down. And visual presented. (Ex. 27-9).

When asked to summarize the recommendations she thought best to treat the Student’s diagnoses, the Audiologist testified:

... Typically, I would recommend, you know, a smaller sized class, quiet classroom, more individualized attention just so that we limit noise, and we limit stimuli. Because this is a child with integration problems, he would do better in a classroom that’s less stimulating because all of the connections going on there with too many students. (T. 1815).

Elaborating on general education versus special education classroom, the Audiologist elaborated:

... any place that he could be taken and put into a small class size with a smaller student-teacher ratio is gonna be better. (T. 1815-1816).

• • CSE Liaison (“The Liaison”) at the Private School – Testimony The Liaison serves as an intermediary between the Parents and the CSE for the Private School. Speaking on the responsibilities of her job, The Liaison states:

I advise parents regarding their interactions with the CSE’s in their districts of residence... I work with parents of students with parents of the students with disabilities to understand the supports and services available to them within their public school system for when they are readied to be mainstreamed and leave [the Private School]. I participate in CSE meetings to report on student’s current needs so that the IEP teams can create appropriate recommendations and supports which reflect the student’s individualized needs. When preparing to participate in CSE meetings, I observe students and consult with teachers, as well as communicate with parents to answer questions about the IEP process. (Ex. O-2).

The Liaison explained how the Private School specializes in assisting students (of average to high intelligence) learn to read and write, helping them overcome previous unsuccessful attempts to do so. The School uses a “research-based program and highly trained teacher” specifically designed to treat students with language based learned disabilities. (Ex. O-3). The program specifically is based on principles from the Orton-Gillingham methodology. The school uses a modified version of the methodology adapted for small groups of students. The modified methodology, Preventing Academic Failure (“PAF”), is nationally recognized for improving reading ability amongst dyslexic students. (Ex. O-5). While this seems to be the exact program utilized by the District during the period when the Student was receiving AIS, the Liaison explained that the Student’s progress could be monitored and charted by direct observation of his work Due to the small class sizes and direct instruction provided by the teachers. (Ex. O-12).

The Liaison is familiar with the Student, who has been attending the Private School since the 2021- 2022 SY. The Liaison reviewed both the school files of the Students (admissions files, conference summary notes, etc.) and the Neuropsychologist’s report, aware of his diagnoses and language skill deficits. The Liaison notes that upon the Student’s enrollment at the Private School, he required “the high[est] level of structure and teacher support provided to him in the small class sizes at [the Private School].” (Ex. O-12). Upon enrollment, the Student required support in English Language Arts (“ELA”) to decode multisyllabic words. The Student needed assistance with higher order comprehension skills such as inferencing, summarization, and paraphrasing. (Ex. O-13). The Student also struggled with writing, particularly demonstrating difficulties with “spelling, writing complex sentence, and drafting cohesive paragraphs.” (Ex. O-14). Using a modified curriculum to address his language deficits, the Student was able to understand at grade level in Mathematics and was described as “an enthusiastic math student.” (Ex. O-15). Speaking on the school’s efficacy and the Student’s overall during the 2021-2022 SY, the Liaison stated:

... [The Student] demonstrated progress in ELA in the areas of reading accurately, reading fluently, and in both literal and inferential comprehension. He benefitted from all of the structure and language support, specifically the scaffolded questions when needed during reading class, and the explicit explanation of unfamiliar vocabulary. By June 2022, he was able to decode one syllable and short vowel words, silent-e words, words with suffixes, words with common vowel teams and many multi-syllabic words. He progressed with reading fluently in connected text. He showed good literal comprehension skills

... [the Student] progressed with his ability to spell words in isolation and improved in his ability to spell words with short vowels, silent e words and common vowel teams. He learned to write more complex sentences and was able to draft a one paragraph composition with some teacher guidance and modeling

... [the Student] also made significant progress in math, specifically in terms of computational accuracy and solving multistep problems with teacher support. He showed great enthusiasm in Math, and with the language-based support in place, in the small class size, he met the demands of the grade level curriculum. (Ex. O-19).

In addition to academic progress, the Liaison notes that the Student also improved socially. She stated that the Student “thrived socially; [he] enjoyed friendships and had positive relationships with peers and adults; he is well-liked by his peers and teachers.” The Liaison also notes that the Student was both an active participant in class and improved in his “self-advocacy skills.”

Speaking on the efficacy of the program and the appropriateness of the placement for the Student, the Liaison conclude her testimony by stating:

The direct, sequential instruction and teaching style delivered to him within a small class setting was crucial to his growth as a learner during the 2021-2022 school year. He thrived with the structure and support of [the Private School]. For [the Student], being in an environment where he had strong relationships with his teachers who helped him express his knowledge with necessary scaffolding, was crucial to his success... Based on my knowledge of the program at [the Private School], my knowledge of [the Student] as a student, and my review of all the evaluative materials discussed herein, it is my professional opinion that [the Private School] was an appropriate placement for him for the 2021-2022 school year. (Ex. O-21).

• • Conclusion In addition to considering the testimony and observations of the Audiologist and the CSE Liaison, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record. To conclude, I agree with the statement of the Neuropsychologist, supra, that the Private School “is an appropriate educational setting and that it would check off essentially all of my individual recommendations for his educational program in the report.” (T. 1736).

Thus, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

• • Prong III: Whether the Parents cooperated with the District
• • Legal Standard A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.14815). The burden of proof 15 § 300.148 Placement of children by parents when FAPE is at issue.
• • General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.
• • Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.
• • Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
• • Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied
• • If - is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).

• • At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
• • At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
• • If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or
• • Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
• • Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement -
• • Must not be reduced or denied for failure to provide the notice if -
• • The school prevented the parents from providing the notice;
• • The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or
• • Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and
• • May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -
• • The parents are not literate or cannot write in English; or
• • Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030)

(Authority: 20 U.S.C. 1412(a)(10)(C))

As the Second Circuit has pointed out:

A number of factors may be considered in assessing the equities. Some are codified in the IDEA, which provides that reimbursement may be reduced or denied if (1) the parents failed to timely inform the IEP team at the most recent IEP meeting attended prior to removing the child from public school — or failed to provide the 10-day written notice — that they were rejecting the placement proposed to provide a FAPE for their child, "including stating their concerns and their intent to enroll the child in a private school at public expense; or (2) the parents failed to make the child available for evaluation, or (3) the parents' actions were unreasonable. 20 U.S.C. § 1412(a)(10)(C)(iii). R.G. v. NYC Dep’t of Educ., 585 F. Supp. 3d 524 (S.D.N.Y. 2022)

That list is non-exhaustive. Forest Grove, 129 S. Ct. at 2493; E.M. v. New York City Department of Education, 758 F.3d 442 (2d Cir. 2014) (characterizing the statutory factors as "elucidative rather than exhaustive" and stating that "[i]n making that equitable determination, the district court may consider many factors"). The court has "broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable." J.S., 826 F. Supp.2d at 671 (citing Carter, 510 U.S. at 16, 114 S. Ct. 361). "Among the most important of these is 'whether the parents have cooperated with the District throughout the process to ensure their child received a FAPE.'" Id. (cleaned up) (quoting Bettinger v. New York City Board of Education, No. 06-CV-6889, 2007 U.S. Dist. LEXIS 86116, 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

In considering the equities, "courts should generally presume that public-school officials are properly performing their obligations under IDEA." Forest Grove, 57 U.S. at 247, 129 S. Ct. at 2496. And to obtain reimbursement in whole or in part, parents bear the burden of establishing that equitable considerations favor them. R.E., 694 F.3d at 185.

• • Analysis

The Parents neglected to send the District a ten-day notice letter when they decided to unilaterally place the Student at the Private School for the 2020-2021 SY. This lack of formality potentially deprived the District of their prerogatives to address the Parents’ concerns before incurring the cost of the instant litigation and the potential payment for the unilateral placement and transportation to the Private School. On the other hand, this record is an excellent example of family engagement with the special education process. For example, there is no doubt that this family complied with the basics of making the Student available for evaluations, providing candid information by responding to rating scales, etc., attendance at CSE meetings, IST meetings and the like. But also, they went further in obtaining their own evaluations, tutors and providing supplemental instruction to the Student by themselves. This effort came at a financial cost, but also created uncertainty for the family relative to planning for the student. This record documents several years of struggle for the Student and the family.

• • Conclusion Upon review of the record, I find that the Parents cooperated with the District throughout the process to ensure the Student received a FAPE. I, therefore, decline to reduce tuition reimbursement, and rule for the Parents on Prong III.
• • Whether compensatory education is an appropriate award
• • Legal Standard An award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
• • Analysis

Because a mere denial of a FAPE does not necessarily warrant compensatory education services, I must determine whether such services are appropriate in this case. Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 (D.D.C. 2013) (finding even if there is a denial of a FAPE, it may be that no compensatory education is required for the denial either because it would not help or because the student has flourished in the student's current placement).

Compensatory education serves to place the Student where he would be had the deprivation not occurred. I look at the Student’s potential from when the procedural violation first occurred. Here, I set the start date for the deprivation as September 2020—the date of the child-find violation. Supra. Thus, by my calculation, the Student was not receiving appropriate services from the start of the 2020-2021 SY forward. When combined with my finding that the CSE did not provide a FAPE in March,16 the Student was without appropriate services for the full school year.

While the Student may be entitled to compensatory services, he now goes to the Private School (at the District’s expense) which has been providing him with adequate programming. I also recognize

16 At the March 3, 2021 CSE meeting, the CSE recommended that the Student receive the following services for the remainder of the 2020-2021 SY: Resource Room (5:1, 1 x Daily, 40min.) and Speech/Language Therapy (5:1, 2 x Weekly, 30min.). (Ex. 4). there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of additional services, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.

• • Conclusion During the 2020-2021 SY, I find that the Student was deprived of services—that he would have been entitled to. During the 2021-2022 SY the District denied the Student a FAPE, the Parents found an appropriate Private School and then failed to formally request “reimbursement” for the private placement. The Student is currently progressing appropriately at the Private School such that “additional services” or “make-up” services would have limited utility. I find it to be equitable to direct the District to fund the tuition and transportation for the unilateral placement and forgo any award of compensatory education for the denial of FAPE during the 2020-2021 SY.

It is therefore ORDERED

• • There was a denial of FAPE for the 2020-2021 SY
• • There was a denial of FAPE for the 2020-2021 SY
• • The District shall fund (directly pay/reimburse) all tuition and costs associated with the Private School for the 2021-2022 school year including transportation and admission costs upon presentation of proper invoicing for same.

Dated: September 8, 2023

NOTICE OF RIGHT TO APPEAL

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

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

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

Appendix A

Parent Witnesses

Title

Name

Date of Testimony / Transcript / Exhibit

Neuropsychologist

[Redacted]

03/28/23 – p. 1648

Ex. 22 & 22A

Audiologist

(& Speech Language Pathologist)

[Redacted]

04/10/23 – p. 1770

Ex. 27

CSE Liaison for the Private School

[Redacted]

04/10/23 – p. 1834

Ex. O

Parent

[Redacted]

04/17/23 – p. 1857

04/27/23 – p. 2040

Developmental Optometrist

[Redacted]

(not a witness)

District’s Witnesses

Title

Name

Date of Testimony / Transcript / Exhibit

School Psychologist #1 (2018-19)

[Redacted]

05/05/22 – p. 20

05/11/22 – p. 99

05/19/22 – p. 185

Special Education Teacher #1

[Redacted]

05/19/22 – p. 223

General Education Teacher #1

1st Grade (2018-19)

[Redacted]

06/07/22 – p. 263

General Education Teacher #2

2nd Grade (2019-20)

[Redacted]

06/14/22 – p. 382

CSE Chairperson #2 (2020-21)

Attended both CSE meetings – Testimony included in FAPE analysis for 20-21 & 21-22

[Redacted]

09/13/22 – p. 480

09/22/22 – p. 533

School Psychologist #2 (2020-21)

Attended March CSE meeting – Testimony included in FAPE analysis for 20-21

[Redacted]

10/17/22 – p. 630

10/18/22 – p. 862 Ex. 21

Special Education Teacher #2

Attended March CSE meeting – Testimony included in FAPE analysis for 20-21

[Redacted]

10/18/22 – p. 785

Assistant Teacher (2020-21)

(Physical Education/Support Teacher in Gen Ed 3rd Grade)

[Redacted]

11/14/22 – p. 919

Reading Specialist (2019-20, 2020-21)

[Redacted]

11/29/22 – p. 1027

01/19/23 – p. 1265

Resource Room Teacher (2020-21)

Attended June CSE meeting – Testimony included in FAPE analysis for 21-22

[Redacted]

11/29/22 – p. 1076

Speech Therapist #2 (March 2021)

Attended June CSE meeting – Testimony included in FAPE analysis for 21-22

[Redacted]

01/09/23 – p. 1194

General Education Teacher #3 (2020-21)

[Redacted]

01/23/23 – p. 1389

02/06/23 – p. 1438

Speech Therapist #1 (January 2021)

Attended March CSE meeting – Testimony included in FAPE analysis for 20-21

[Redacted]

02/06/23 – p. 1568

02/13/23 – p. 1615

Appendix B

IEP Chart

Exhibit

Date of Meeting

Evaluations Utilized

Attendance (Name / Position)

05/08/18

• • Committee Discussion (05/08/18)

[Redacted]

2018-

2019 SY

• • IEP Progress Report (03/16/18)
• • Report Card (03/16/18)
• • IEP (03/29/17)

1st Grade

01/29/19

2018-

2019 SY

1st Grade

• • Committee Discussion (01/29/19)
• • Educational Evaluation (01/09/19)
• • IEP Progress Report (11/30/18)
• • Report Card (11/30/18)
• • IEP (05/08/18)

[Redacted]

05/13/19

2018-

2019 SY

1st Grade

• • Committee Discussion (05/13/19)
• • IEP Progress Report (03/15/19)
• • Report Card (03/15/19)
• • Speech/Language Evaluation (03/15/19)
• • Classroom Observation (02/05/19)
• • IEP (01/29/19)
• • Psychological Evaluation (01/29/19)
• • Social History Update (01/28/19)

[Redacted]

03/03/21

2020-

2021 SY

3rd Grade

• • Committee Discussion (03/03/21)
• • Classroom Observation (03/01/21)
• • Psychological Evaluation (03/01/21)
• • Neuropsychological Evaluation (02/20/21)
• • Vision Evaluation (02/17/21)
• • Speech/Language Evaluation (01/21/21)
• • Educational Evaluation (01/12/21)
• • Social History (01/11/21)
• • Auditory Processing Evaluation (12/23/20)
• • Report Card (12/04/20)
• • Physical Examination (06/30/20)

[Redacted]

06/01/21

• • Committee Discussion (06/01/21)

[Redacted]

2021-

2022 SY

• • IEP (03/17/21)
• • Neuropsychological Evaluation (02/20/21)

4th Grade