NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NYSED # 570271 / NYC # 224630
FINDINGS OF FACT AND DECISION
Case Number: 224630
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Roberta Wolf
Date of Filing: 02/22/2022
Hearing Requested by: Parent
Date of Hearing: 06/28/2022-6/30/2022
Record Close Date: 07/18/2022
Date of Decision: 07/22/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2022
For the Department of Education (DOE):
[REDACTED]
[REDACTED], DOE Special Education Social Studies teacher
For the Student:
[REDACTED]
[REDACTED], Parent
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 29, 2022
For DOE:
[REDACTED]
[REDACTED], DOE School Psychologist
[REDACTED], DOE Special Education Math teacher[1]
For the Student:
[REDACTED]
[REDACTED], Parent
[REDACTED], Neuropsychologist
[REDACTED], DOE Special Education Math teacher
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 30, 2022
For DOE:
[REDACTED]
For the Student:
[REDACTED]
[REDACTED], Parent
[REDACTED], Assistant Head of [REDACTED] School
BACKGROUND
On February 22, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against the DOE on behalf of the Student, under Case No. 224630, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415[f]) and Section 4404(1) of the New York State Education Law (Education Law).[2]
The DPC asserts that the DOE failed to provide the Student with a free appropriate public education (FAPE) after the DOE’s Committee on Special Education (CSE) convened a review meeting on August 10, 2021, to develop an Individualized Education Program (IEP) for the Student for the 2021-2022 school year.[3] The IEP recommended, among other things, that the Student remain in a general education classroom and receive Integrated Co-Teaching (ICT) instruction in four subjects (English Language Arts (ELA), Math, Social Studies, Sciences), counselling services, and a laptop (Ex. 9-15).[4] The Parent alleges that the IEP was substantively and procedurally deficient under federal and state law because the DOE failed to: (i) perform an adequate triennial evaluation of the Student; (ii) evaluate all required data of the Student; (iii) convene with required IEP team members; (iv) recommend appropriate services for the Student; and (v) offer appropriate methodologies to address the Student’s specific needs.[5] The Parent asserts that she notified the DOE of her concerns during the CSE meeting but received no substantive response, and also previously contacted the Student’s teachers to express those concerns, but only one responded timely (within 24 hours) whereas others responded after two to three weeks or not at all.[6] The Parent thereafter unilaterally placed the Student in Private School and now seeks payment of tuition for the 2021-2022 school year and reimbursement for an independent educational evaluation (IEE).[7]
PROCEDURAL HISTORY
I was appointed impartial hearing officer (IHO) for this case on June 16, 2022. The parties received time to try resolve the matter without the need for an impartial hearing. However, at a pre-hearing conference held on June 21, 2022, they agreed that settlement negotiations proved unsuccessful. I granted an Order on Extension on June 22, 2022, and held the merits hearing on June 28, 29, and 30, 2022. All exhibits were admitted into evidence, except Exhibit 1 (withdrawn as duplicative of Ex. A); and Exhibit D (withdrawn as duplicative of Ex. 9). A list of the documentary evidence is appended to this Order. The DOE’s case consisted of live testimony from the School Psychologist, DOE Social Studies teacher, DOE Math teacher, and documents placed in evidence. The Parent’s case included live testimony from the DOE Math teacher, a Neuropsychologist, the Assistant Head of the Private School currently attended by the Student, the Parent, and documents placed in evidence.
FINDINGS OF FACT
The Student is [REDACTED] years old student and her eligibility for special education supports and services is not in dispute. She is classified by the CSE as a student with a “Specific Learning Disorder” with impairment in written expression including spelling accuracy, grammar and punctuation accuracy, and clarity of organization and written expression (DSM-V 315.2 / ICD-10 F81.81. (Ex. Y-1)).[8] The Student’s disability classification on IEPs for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years is “Learning Disability.”[9] Various documents reference the Student’s prior diagnosis of dyslexia[10] and dysgraphia[11] (contributing to [REDACTED]),[12] signs of dyscalculia,[13] and anxiety.[14] The Parent attended the CSE meeting that developed the IEP on August 10, 2022.[15] The IEP notes that the Parent “does not agree with the results of the Psychoeducational Evaluation” conducted on July 14, 2021, on which the CSE relied in part to determine the Student’s “average” and “high average” level of performance.[16] The IEP recommended 10 periods per week of ICT ELA, 10 periods per week of Math, 5 periods per week of Social Studies, 5 periods per week of Sciences, the related service of counseling, the assistive technology of a laptop with text to speech and word prediction software, and testing accommodations (additional time, separate location, cues, directions read aloud, and laptop use).[17] The CSE considered but rejected General Education without an academic program or counselling because “[the Student] requires academic support to access the general education curriculum.”[18] Similarly, the CSE rejected a Special Class 12:1 class in a community school as “too restrictive at this time.”[19] The DOE’s Case The DOE contended that it offered a FAPE to the Student for the 2021-2022 school year, and that the Parent failed to demonstrate that her placement of the Student in the Private School was appropriate; therefore, the Parent’s request for relief should be denied in its entirety.[20] The DOE offered the Student’s IEPs from the 2019-2020[21] and 2020-2021[22] school years to show that the CSE maintained the same recommendations of ICT because the Student’s progressed in that educational environment at her Public School. The DOE also provided the Student’s 2021-2022 transcript[23] and “Graduation Tracker,”[24] to show that the Student passed three ninth-grade courses and earned six Regents credits toward high school graduation while still in the eighth grade.
DOE’s Special Education Social Studies Teacher The DOE Social Studies Teacher taught the Student ICT ELA during seventh grade and “technically” ICT Social Studies for eighth grade (i.e., the Student was on his roster, but once classes switched to remote learning due to COVID protocols, he did not oversee or grade her work).[25] Nevertheless, ICT instruction was appropriate during seventh grade because although the Student did not often want support, she needed it, particularly for her writing, where she had “some gaps.”[26] For example, the Student formulated ideas for writing well, but her construction, organization, and execution needed help, as did her spelling.[27] ICT supports assisted the Student with planning, pre-writing, visual aids for structure of paragraphs and essays, and revision.[28] The Student needed less support for reading because she enjoyed it and showed good comprehension of texts[29] and “was not very far behind many of her peers... perform[ing] pretty well.”[30] He often checked-in to informally assess her progress, but the Student generally rebuffed him to deflect attention from the fact that she received ICT instruction.[31] Nevertheless, he believed she benefitted from the support even if she did not want it.[32] He could not recall if the Student made progress (“I want to say yes, but I do not fully remember.”).[33]
Her academic functioning compared to rest of class was “about in the middle of the class”[34] and socially, her functioning was “similar” to others, or “all over the place,” because seventh grade was difficult for all students.[35] He did not know whether the Student would perform better via remote learning versus in-person learning,[36] nor could he recall her level of executive functioning[37] or if she needed additional time to complete tasks or cues to refocus her attention.[38] He did recall that the Student became frustrated with herself if she felt that she was not progressing.[39]
With respect to high school, ICT would be an appropriate placement for the Student but he did not elaborate as to why.[40] The Student’s Public School had an affiliated high school which guaranteed a seat for an eight-grade applicant requesting a placement there.[41] All courses at the Public School, including the Student’s eighth-grade curriculum, were “accelerated,” meaning faster paced, and focused on preparation for and passing of, Regents exams necessary for high school graduation; however, he believed that teachers generally tempered their expectations in terms of quality of work and deadlines, but not skills, to account for the challenges caused by a remote-learning environment.[42] He could not specifically recall if Student struggled during her eighth-grade, 2020-2021 school year, but remembered conversations with other teachers that she “might have been having trouble.”[43]
He participated on the CSEs that created the Student’s IEPs for the 2019-2020 and 2020-2021 school years.[44] Although the Student’s 2019-2020 IEP (implemented for seventh grade), referenced State ELA and Math exams both grading her “Level 2,” without additional information, “Level 2” could rate anywhere from a 2.0 (“the lower end of approaching standards,” and “very rare,”) to a 2.9.[45] He noted that 2019-2020 IEP ranked the Student’s instructional level for math at the fifth grade level.[46]
DOE’s School Psychologist The DOE Psychologist participated in the IEP meeting in August 2021 that created Student’s 2021-2022 IEP, serving dually as the District’s psychologist and representative.[47] The IEP was developed because Parent requested a reevaluation.[48] Because the meeting convened over the summer, none of Student’s teachers from the previous year attended, nor did the CSE confer with them prior to drafting the IEP.[49] Instead, the team reviewed information placed in the Student’s SESIS (Special Education Student Information System) file, which included the Student’s “Graduation Tracker” earned credits, a four-page psychoeducational evaluation conducted July 14, 2021, a June 2021 teacher report, an IEP from February 2021, and an interview with the Student.[50]
Referencing information in the February 2021 IEP, the psychologist paraphrased the Student’s challenges as “struggles in math.... [she] sometimes gets confused by the operation that she should use with solving” and “It seems that completing work at home was a little bit of an area of difficulty for her,” but “from what the information that we had at the time, in terms of the areas of struggle, we're really indicated with math... it seems like that was the area of struggle for her the most in terms of the other areas, they weren't anything significant from what I remember.”[51] However, the psychoeducational evaluation “indicated that she was still performing within average means of functioning in terms of all academic areas;” therefore Student’s difficulties with math could have stemmed from the remote work environment rather than the Student’s performance ability.[52]
The psychoeducational evaluation scored Student as “Average” in all tested areas, but two, wherein Student scored as “High Average.”[53] Per the evaluation, the Student “read[] passages with fluency and appeared to have good syntactic and semantic cues within reading. She was able to self-correct as well.... she had a good linguistic knowledge when they administered the test. In terms of math, she also performed very well... in terms of applying problems, which is just word problem solving and then calculations, she performed within the average ranges of functioning within both of those subsets as well.... she was able to correctly spell words that were grade level.”[54] The Student also “had difficulty spelling words she was unfamiliar with,” but “she was able to produce sentences using crux syntax, spelling and grammar.... her handwriting was legible as well.”[55] With respect to the comprehensiveness of the materials available in the SESIS file, the June 2021 teacher report consisted of one paragraph and the identity of the teacher was unknown.[56] The “Graduation Tracker” reflected the Student’s six tallied graduation credits, but did not identify during which semester the Student earned those credits.[57] The Psychologist did not know why the Parent requested a reevaluation, but typically, it pertained to academic performance.[58] Moreover, the Parent here expressed concerns regarding the Student’s social and emotional functioning with regard to academics.[59] Last, the Student’s psychoeducational evaluation was outdated.[60] The CSE did not have the Student’s upcoming class schedule, but did have her eighth-grade schedule, although not information about class sizes or the setting (i.e., in-person, hybrid, or remote learning); therefore, it did not consider those factors.[61] Similarly, the CSE did not have a classroom observation to consider, the Student’s transcript with which to review the Student’s grades,[62] or information about the Student’s use of and benefit from after-school office hours.[63] No essay composition was conducted nor were any of the Student’s writing samples reviewed, notwithstanding the requirement that students write essays as part of the ninth-grade curriculum; however, the Psychologist reviewed essay-writing information contained in the February 2021 IEP.[64]
ICT services provided the appropriate education for the Student because they enabled her to remain with mainstream peers while also offering the assistance of a special education instructor, and overall, the Student “was adequately performing within the average means from what we have on file.”[65] The Psychologist testified that the CSE rejected a 12:1:1 class setting “Because a 12:1+1 would be too restrictive for her. A 12:1+1 – it was considered – a student with her cognitive and academic abilities would not be a good candidate for a 12:1:1 classroom.”[66] The Psychologist testified that the CSE also rejected a General Education setting because “she still appears to benefit from having that integrated co-teaching class with having the academic instruction delivered in a different way.”[67] All IEP team members supported the program recommendations, except for the Parent, who disputed the findings of the psychoeducational evaluation and expressed concerns about the Student’s “social-emotional state, which she feels is impacting her ability to produce adequate academic work.”[68] To address those concerns, the IEP provided small-group counselling once per week.[69]
The “Management Needs” on the IEP (teacher check-ins, graphic organizers, additional time to complete tasks, cues to refocus attention, planner to track deadlines, laptop) were beneficial for the Student because the June 2021 teacher report “indicated... having a teacher check in with her every so often, and she was still performing within the average ranges.”[70] The “Measurable Annual Goals,” which consisted of one math word-problem goal, one writing goal, one reading-comprehension goal, and two executive-functioning goals (i.e., anxiety management) were both measurable and appropriate for Student.[71]
To summarize the Student’s difficulties during the 2020-2021 school year, she struggled work completion: “[A]ccording to the teacher report, she had had her camera off. She doesn't respond in the chat. Independent work was a challenge for her, and completing short daily homework assignments also was not, was not an area that she was really working on.”[72]
When asked on cross-examination, “Do you feel like you really had a good grasp of the issues that the student was experiencing that preceded the IEP meeting?” The Psychologist replied: “Overall, in-depth presentation of the issues, no. But regarding the assessment that was conducted, I think it gave a good estimation of where she was at academically.”[73] She did not know if an accelerated program would be an appropriate placement for the Student based on her skill levels, nor the school location that the District ultimately recommended for the Student for the 2021-2022 school year.[74]
DOE’s Special Education Math Teacher The Special Education Math Teacher taught the Student Algebra and Earth Science during the 2020-2021 (eighth grade) school year.[75] The Algebra course covered eighth-grade algebra and Algebra 1 (two years of material in one year) in a remote-learning environment consisting of about 70 students, with a general education teacher (General Education Teacher 1), and a second special education teacher.[76] He taught the Earth Science class with two general education teachers, and no other special educators.[77] After the winter break, the District redistributed the class into smaller, 20-student sections.[78] The Student showed appropriate progress during that school year in part because she ultimately passed all of her classes.[79] She had a difficult time with math and the two met “very frequently to work on it, meaning a meeting once every two weeks for 20-30 minutes, and sometimes once a week.[80] The Student sometimes learned “very, very fast,” where he would work with her for 10 minutes and “she’d be very good on that next 10 minutes,” but also “retention was difficult... once she gets it, once she’s in the flow or she’s primed for it, she does pretty well.”[81] Accelerated algebra challenged the Student, as it did many students, and the course was mandatory for all students.[82] Nevertheless, the Student maintained her grade even as the difficulty level of the content increased.[83] Lesson retention the following day posed a challenge for the Student, as did inverting coordinates or multiplying when an operation called for division.[84] When asked if the Student’s instruction for the 2020-2021 school year provided adequate support for her deficits, he responded: “I feel like for the classes that I taught, I did as much as I could.... I feel I did a lot and I did right by her and that’s about all I can say to that... from my part, I feel I did everything I could.”[85] The Student benefitted from an ICT setting because, for example: (1) it provided opportunities for low-profile engagement (e.g., online chat, polls, breakout groups) that encouraged interaction for introverted pupils; and (2) slowed down the pace of and reinforced general education lessons (the Math teacher sometimes voiced questions the students may have with that goal in mind).[86]
He participated on the CSE for the Student’s 2020-2021 school year (along with the DOE’s Special Education Social Studies Teacher) to provide feedback on the Student’s performance in math and science.[87] He did not author the section of the 2020-2021 IEP that pertained to the Student’s performance in math (General Education Teacher 1 supplied that information), but he did provide the feedback on the Student’s progress in Earth Science.[88] Although the IEP referenced the Student’s dyscalculia and sixth-grade-level functional math performance, all eighth-graders at the Student’s school were nevertheless required to take the accelerated algebra/Algebra 1 course.[89] The school offered struggling students the option to retake the Algebra 1 portion of the class during freshman year.[90] At the IEP meeting, he recalled discussing a “retake” policy for math and science, the Student’s challenges in math generally, and the Parent’s concerns about the Student’s academic performance.[91] After providing his input, the IEP team leader excused him from the remainder of the meeting.[92]
An ICT setting provided the correct placement for the Student because a self-contained class “would be far too restrictive,” considering her maturity to manage the routines of a mainstream classroom.[93] The Management Needs for the Student were appropriate and adequate, particularly a structured notebook used for math and science to “lin[e] up everything in neat rows for steps... to help her present work.... a way of organizing material that works really well. And I think also fulfills that need, guiding questions in writing to help her produce greater detail.”[94] Frequent repetition and encouragement to self-advocate would have been helpful additions.[95] The Student’s functioning compared to other students was “somewhat lower than peers, but certainly not the lowest,” and averaged in the 70 to 80 range for most of the year.[96] The IEP did not include “Annual Goals” for math or science, which was likely an oversight;[97] however, the Student regularly partook of office hours, which “definitely, definitely” benefitted her.[98] The Student’s motivation waned later in the year, likely from “Zoom fatigue,” and the remote-learning environment: “[W]e definitely noticed a decline.”[99] He communicated regularly with the Parent to discuss the Student’s performance.[100] When in-person classes resumed near the end of the school year, the Student “seemed to be in better spirits than when I talked to her online.”[101] However, “it did seem from what I heard from [the Parent], it sounded like she was having a difficult time just emotionally with, especially with keeping up with the work and not feeling like she could do it.[102]
With respect to the 2021-2022 IEP, he authored the June 14, 2021, teacher report, but it was truncated. [103] He recalled including language such as, “these observations are consistent across the board for algebra and earth science.”[104] In its closing statement, the DOE reiterated that the IEP was appropriate for the student, as testified to by its witnesses, but also because the Student began the year at grade level in nearly all academic areas.[105] The Neuropsychologist’s IEE, completed after the CSE convened, focused on maximizing the Student’s academic potential, which exceeded the DOE’s obligation to provide an IEP that was reasonably calculated to enable the student to make appropriate educational progress.[106] Additionally, the Neuropsychologist’s recommendation did not consider the DOE’s responsibility to provide services in the least restrictive environment.[107] With respect to the Parent’s claim for IEE reimbursement, the Parent provided no evidence that she properly addressed or sent the letter to the District.[108]
The Parent’s Case The Parent argued that the District must show that the IEP was reasonably calculated to enable progress in light of the Student’s unique circumstances, which here involved a highly gifted child with superior intelligence, but who was also impaired in a number of ways that impeded her academic progress. As a result, the DOE’s argument, essentially that it must have provided a FAPE because the Student received Regents credits, did not satisfy the standard. Moreover, the District maintained the same ICT services on the 2021-2022 IEP as with previous IEPs, notwithstanding the Student’s well-documented, well-known, and long-standing struggles to maintain the pace and workload at Public School and obvious need for additional services. Because the District cannot establish that it provided the Student with a FAPE, the Parent’s unilateral placement of the Student in a Private School that provides her with specialized services enabling her to receive educational benefits is reasonable and appropriate, as is tuition funding and reimbursement.[109]
The Neuropsychologist
He evaluated the Student on August 17, 2021, in a one-on-one setting to evaluate her cognitive ability and learning profile, then compared his findings with the District’s July 2021 psychoeducational evaluation.[110] He discovered that the Student had a very high IQ: “[I]t’s in the 130s, extremely bright,” and that virtually all of her skills levels rated, “very high to extremely high,” aside from average-level nonverbal reasoning and coding processing speed.[111] He found “practically no correlation whatsoever” with the results from the July 2021 report: “[I]t’s like a 35-point [IQ] difference, like a 50th percentile to a 90-95th percentile. It’s as if [the evaluator] tested somebody else.”[112] The Student had moderate to severe dyslexia, and also dysgraphia and dyscalculia, which interfered with coding and her overall functioning.[113] The Student exhibited anxiety and depression, which surfaced as anger and frustration because although she had “superior skills,” “she has problems producing what she needs to know... difficulty organizing and planning.... she just hasn’t been able to use the skills that she has.”[114] He prepared a 43-page IEE detailing the 16 assessment methods he used and seven documents he reviewed.[115] The Woodcock-Johnson test used by the evaluator for the July 2021 report “takes about 10 minutes to give,” and was not meant to diagnose a learning disability by itself.[116] That test needed the context provided by additional assessments, such as those he administered.[117] As a result, it was not a true measure of the Student’s reading ability because she could perform well on the test based on her cognitive skills alone (“She can figure it out even if she can’t read the word.”).[118] All of the Student’s IEPs mentioned her frustration in keeping up with work, and, when she was able to successfully manage her workload, it was only with “a great deal of frustration and difficulty.”[119] The Student’s “Level 2” ELA score provided a measure of her reading ability: “[T]his person who has superior skills, which should be functioning at [Level] five is at two. And if you read through the rest of the narrative, from the reports, you can see that she’s struggling and reading and not keeping up.”[120] Similarly, the Student was not “on grade level” for writing: “[S]croll down in the report to her writing sample, for somebody with superior intelligence or average intelligence. Her writing sample is a mess.”[121] With respect to her math skills, the Student’s calculation abilities ranked at the low fifth-grade level, whereas applied problems tested at an average level.[122]
The Student’s needs could not be met in an ICT environment “because it has nothing to do with what her problems are.”[123] Rather, she needed private placement in a specialized program with expertise in handling emotional functioning difficulties, dyslexia, dysgraphia, and dyscalculia: “She needs explicit instruction for these.... You need specific training in that, of very specialized training, not [a] special ed teacher [who] doesn’t learn about those things. You need to be an expert in that field. And that’s why she needs that particular type of service.”[124] Because the Student already exhibited learning difficulties, a placement in an accelerated program at Public School was akin to “putting oil on the fire” because the competitive environment and faster pace would further compound her frustration and erode her self-esteem.[125] In summary, ICT services provided no academic benefit whatsoever to the Student: Rather, any learning stasis or progress resulted solely from her own exceptional cognitive abilities, but at the cost of extreme and unsustainable effort, frustration, and anxiety.[126]
The Assistant Head of the Private School
Student was placed in the Private School for the 2021-2022 school year, which served children (third through twelfth grade) with various learning disabilities.[127] Prior to admitting the Student, the Private School interviewed her, then reviewed the Parent’s statements, past psychoeducational evaluations including the Neuropsychologist’s, and data from other past testing.[128] The Private School also administered its own assessments.[129] Its conclusions were similar to those of the Neuropsychologist, namely, that the Student “was clearly a distinct student who had abundant strengths and clear cognitive strengths that yet had not performed to the best of her capacity in her prior school placements.... She shows really outstanding expressive, expressive, oral expressive language skills. Her comprehension, listening comprehension is very strong.... [The Student] also has some areas of difficulty largely in the kind of written language realm, written expression, including the mechanics of language. She also has weaknesses that are reflective of kind of phonological processing weakness, which manifests in difficulty with encoding of language spelling, again, writing mechanics. Evidence of difficulty with math calculation, and some kind of executive functioning difficulties that, that reveal themselves in, in a series of ways, including kind of organization and, and planning.[130] Initial assessments ranked her instruction reading at the high-school level, but her math level indicator scored her at the 54th percentile and her written language level between the 40th and 50th percentile.[131]
The School subsequently placed the Student into two learning “cohorts” of students with similar learning disabilities – one for language arts, literature, science, and history courses, and the other for math.[132] The School customized its instruction with specific strategies and methods designed for students with dyslexia, executive dysfunction, and other learning disabilities, and also reviewed and refined that instruction on a weekly basis.[133] All of the Student’s instructors carried Master’s degrees in Education or related fields and had prior experience working at the School.[134] The Student’s class size was 8:1 for Math and 10:1 for all other classes.[135] Additionally, the Student received a daily, 1:1 “Focus” period to work on written language (writing mechanics and expressive writing skills), spelling, coding, and reading comprehension.[136] The Student’s “Focus” instructor was a speech and language pathologist who could provide “a language-rich focus program for her.”[137] The School conducted formal and informal assessments to gauge the Student’s progress and concluded that the Student made “tremendous progress this year in the targeted areas of skill remediation,” including “great” and “excellent growth” in reading comprehension and academic organization; “emerging internalization” of paragraph, writing, revision, and editing strategies (but still “an area in need of further remediation;” and “a successful year in math... progress[ing] nicely through the Algebra 1 program and... well-positioned to move onto a geometry program next year.”[138] Additionally, the Student “showed no signs of anxiety or really any frustration in her work as a student this year”[139] The Parent The Parent formerly worked as a District teacher ([REDACTED]), currently works as a [REDACTED], and has [REDACTED] other children diagnosed with [REDACTED] and [REDACTED].[140] She noticed the Student struggling “really early” with learning and exhibiting the [REDACTED] at the same time that [REDACTED].[141] In Kindergarten and first grade, the Student could not retain a story read to her over and over again, nor could she associate letters with phonemes, or remember simple words like “cow.”[142] While in the first grade, the Student received an evaluation from s[REDACTED], which confirmed her reading issues, but did not yet diagnose her as dyslexic due to her young age.[143] Upon receipt of the evaluation, the Student’s school placed her in an at-risk program for reading.[144] The Parent also paid for private tutoring for several years.[145] The District repeatedly found the Student ineligible for an IEP “because she is extremely bright and she can make her way around her class without actually reading or writing, or doing any of that.[146] In fact, the District placed the Student for a gifted program due to her high IQ.[147] The Parent repeatedly asked for an IEP, and after obtaining a subsequent evaluation confirming the Student’s dyslexia, the District provided her with an IEP in with Special Education Teacher Support Services (SETTS) sometime between the Student’s third and fifth grades.[148] However, the District never actually provided SETTS and told the Parent that teachers could accommodate the Student’s needs with class modifications.[149]
When the Student finished the fifth grade, the Parent applied to other neighborhood schools ahead of Public School, out of concern that the Student could not keep pace with its academic rigor; but she nevertheless received a placement there for sixth grade.[150] The Student had already “been struggling to keep up with her classmates for years.... her writing was declining, she couldn’t keep up with the writing assignments.... It was a lot of frustration for her. There was a lot of anxiety and crying just to try to get her to complete the work, but the person that she is, she doesn’t give up... she would spend she would spend hours and hours just trying to keep up with the amount of work and homework that she got.”[151] The Parent expressed her concerns to the District, who told her that the Student received a placement at Public School because she was the highest-ranked IEP student, even though her scores ranked among the lowest overall.[152] The District modified the Student’s IEP from SETTS to ICT because the District could not implement SETTS; however, the Student performed poorly in an ICT environment during her sixth- and seventh-grade years because she could not keep up with the coursework.[153]
During the Student’s eighth-grade year (2020-2021), her struggles “became really apparent by the first marking period... each semester has three marking periods. In the first marking period, they always give you a warning.. a week before and [the Student] was failing everything by the week before.”[154] The Student struggled through the year and the Parent contacted her teachers repeatedly to express her concerns.[155] Nevertheless, the Student fell further and further behind.[156]
At an IEP meeting held December of 2020, the Parent again notified the District that the Student was “really struggling. She’s crying all the time. She’s frustrated. She’s just like, she was screaming. She just would come out shaking... she’s... falling so far behind.... This is like an ongoing daily thing.”[157] The CSE made one modification to the IEP to allow for a one-on-one teacher check-in, but the DOE Math teacher left the meeting before the modification was made and he was the only teacher who implemented modifications for the Student.[158] The Parent continued to voice her concerns with the Student’s teachers through an online portal provided by the District and estimated that she sent at least 30 to 40 emails.[159] The DOE Math teacher typically responded within 24 hours; General Education Teacher 1 took two to three weeks to respond (and blamed the Student for her struggles); and the other teachers never responded at all.[160]
At the August 2021 IEP meeting, the Parent again expressed her concerns about the Student’s struggles and asked the CSE if she could place the Student elsewhere.[161] The DOE’s School Psychologist responded that “They didn’t handle that.”[162] The Parent subsequently requested reimbursement for the Neuropsychologist’s IEE.[163] Two events informed her decision to remove the Student from Public School and place her in the Private school for the 2021-2022 school year.[164] First, the Student suffered a breakdown in May 2021, saying: “Mom, it's been like this, and... I just feel like... I'm standing still... or I'm walking very slowly and everybody else around me is... going past me. And I, I just, I can't keep up anymore. I just, I can't.”[165] The Parent pursued an IEE from the Neuropsychologist around that time because “I just needed to know what was going on with her.”[166] The second event occurred at the August 2021 IEP meeting, when the CSE showed the Parent the results of the psychoeducational evaluation performed that past July.[167] The Parent expressed disbelief as to its findings: “[T]his is not even my child... I don’t know who you are testing... what you’re saying is that she’s a very low-average child in intelligence and... [these are]... adequate skills that [she] should be showing... I even asked then... ‘how can I get her placed somewhere else because this is just not working.’”[168] In her closing argument, the Parent reiterated that the District failed to provide a substantively appropriate and procedurally valid IEP as shown by the evidence in the record, namely, the Student’s falling grades; multiple prior IEPs acknowledging the Student’s continued academic struggles and below-grade instructional levels; witness testimony that the Student’s performance waned while her anxiety increased; and a CSE team (that reviewed and dismissed this information) comprised of none of the Student’s service providers.[169] The Parent further asserts that the documentary and testimonial evidence it provided about the Parent’s placement of the Student in the Private School establishes the appropriateness of the placement and that equities favor the Parent with respect to funding and reimbursement.[170] Last, the Parent reiterates her eligibility for reimbursement of the IEE.[171]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[172] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) the DOE complies with the procedural requirements set forth in the IDEA.[173] For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[174] In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[175] The DOE may be required to pay for educational services obtained for a student by the student’s parent, if a preponderance of the evidence shows: (1) the services offered by the DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (2) the services selected by the parent were appropriate; and (3) equitable considerations support the parent’s claim.[176]
Prong 1 – FAPE Denied to the Student
A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[177] Although a school district is not required to “maximize” the potential of a students with disabilities,[178] it must provide “an IEP that is ‘likely to produce progress, not regression,’ and... afford[] the student with an opportunity greater than mere ‘trivial advancement’.”[179] In other words, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[180]
Here, the DOE established that it provided an IEP with the required technical components by providing a statement of the student's present levels of academic achievement and functional performance, annual goals, and special education and services; however, the IEP must provide appropriate special education and services. “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[181] and provides for the utilization of sufficient special education services.[182]
Per the Psychologist’s testimony, the CSE reviewed the Student’s “Graduation Tracker,” a four-page psychoeducational evaluation, a paragraph-long report from an unidentified teacher, the Student’s prior IEP from February 2021, and an interview with the Student.[183] The Psychologist later modified her testimony to state that the CSE also reviewed the Student’s eighth-grade transcript.
The Psychologist conceded that she did not have a “good grasp” of the “overall, in-depth presentation of the issues,” but defended the District’s July 2021 assessment as “a good estimation of where [the Student] was at academically.”[184] However, the assessment repeatedly referred to the Student’s falling grades and related anxiety, stating:
[The Student] was referred per parent request due to concerns regarding declining grades, and anxiety in relation to school,” “It was reported that her ‘grades are going down,’” “[Parent] reported that [the Student] is not getting enough support in school.... she doesn’t feel the current educational placement is appropriate.[185]
The evaluation also addressed the falling grades directly:
[The Student] had a cumulative average of 76.67% at the end of her first term in high school. In the 6th grade, she had an 85 average for ELA and 80 for Math at the end of the second term. In the 7th grade, she had an average of 90 for ELA and 85 for Math at the end of first term. She received an “MT” which demonstrated that she met the standards for the grade level content during remote learning for the second term of 7th grade. Currently in the 8th grade, Esther obtained an 80 for ELA and a 75 for Algebra at the end of first term. Second term grades were not available.[186]
The “Graduation Tracker” provided no substantive information about the Student, other than she accrued six credits toward graduation. The brief teacher’s report underscored the Student’s struggles, stating that she had “fallen off” of work completion, but benefited from one-on-one instruction. The Student interview asked questions such as “If you were given three wishes, what would you wish for?” and again, provided no substantive information about her falling grades or anxiety. Last, the February 2021 IEP also identified the Student’s academic struggles. (Earth Science: the Student “has had very inconsistent scores” on assignments and “quiz grades have also been somewhat inconsistent... “[she] should be encouraged to attend... office hours.”[187] ELA scores “have dipped a little from the first marking period” and scores were on the lower side because all of the questions were not fully answered and were rushed through.”[188] Math: “Student struggles with math... confused by the operation... handwriting is difficult to read.”[189]).
To the extent that the Psychologist may have reviewed the Student’s eighth-grade transcripts (notwithstanding the language in the evaluation that “[s]econd term grades were not available,”[190] they only confirm the Student’s worsening academic performance. The Student’s ELA dropped from 90 (seventh grade) to 85 (first marking period, noted in IEP[191]) to 80 (first term eighth grade) to 75 (second term eighth grade).[192] Math dropped from 85 (seventh grade) to 75 (first and second term eighth grade).[193] Spanish showed no improvement and stayed at a consistently low grade of 65.[194] History dropped from 75 to 70.[195] Engineering dropped from 90 to 80.[196] Earth Science no improvement, remaining at a score of 80.[197]
The Psychologist acknowledged that the CSE did not have the Student’s upcoming class schedule nor was it aware of the Student’s placement in a Public School with an accelerated program. Furthermore, the CSE formulated the Student’s single writing goal without conducting an essay composition or reviewing the Student’s work. Although the Psychologist testified that the CSE reviewed the essay-writing information contained in the February 2021 IEP, I do not credit that assertion. The Psychologist modified her testimony with respect to the CSE’s access to the Student’s transcripts, first stating that they only reviewed the Student’s “Graduation Tracker,” then asserting on re-direct examination that the CSE in fact reviewed the Student’s complete transcript. Similarly, the Psychologist initially testified that the CSE reviewed no information about the Student’s class sizes or remote-learning environment, but the August 2021 IEP itself refers to “in person days,” “[i]n full group class she tends to have her camera off and does not usually respond in the chat,” “larger online sessions,” “turning her camera on,” “participating in large groups,” “hesitant to participate in large group discussions (either verbally or in the chat),” and “[the Student] is excited to get back to in person learning.” Moreover, when asked to summarize the Student’s difficulties, the Psychologist herself testified, “[A]ccording to the teacher report, she had had her camera off. She doesn't respond in the chat.” The Psychologist testified that the CSE had no information about the Student’s use of and benefit from after-school office hours; however, the July 2021 evaluation, teacher report, and December 8, 2020 IEP, all reference those office hours.[198] Last, the Psychologist testified that teacher check-ins (included on the Management Needs section of the IEP) were beneficial for the Student because the June 2021 teacher report “indicated... having a teacher check in with her every so often”; however, the teacher report made no reference to check-ins or any of the other management needs or related beneficial outcomes.[199]
Turning to the content of the July 2021 psychoeducational evaluation itself, I give it less weight than the much more comprehensive IEE provided by the Neuropsychologist. The Neuropsychologist testified that the Woodcock-Johnson test used by the evaluator took about 10 minutes to administer; was not meant to diagnose a learning disability by itself; and needed additional context provided by companion assessments to gauge the Student’s true capabilities. With respect to the difference in IQ scorings (132 versus 103), the Neuropsychologist explained in the IEE that, “[W]hile a person with superior skills can “get” an average IQ, for whatever emotional or attention issues, it is impossible for a student with average skills to obtain a superior cognitive score.”[200] Because the Neuropsychologist spent more time with the Student that the DOE’s evaluator and conducted a more thorough evaluation of the student, I find that his IEE provides the accurate assessment of the Student’s cognitive, executive, and behavioral functioning.
Further underscoring the ineffectiveness of the 2021-2022 IEP to provide special education services tailored to the unique needs of this particular student,[201] and specifically the inappropriateness of ICT as a special education service provided in this case, the Neuropsychologist pointed out (in the IEE) two statements from the Student’s teachers:
From the 2019-2020 IEP: “She at times strayed from the focus of the questions of short response/essay questions. We are working to establish the cause of this and how to ensure that it does not become a habit.”[202]
From the 2020-2021 IEP: “[The Student] shows signs of dyscalculia.... [she] only does what’s mandatory, despite my insistence that the additional practice will strengthen her understanding.”[203] The Neuropsychologist explained that the Student’s dyslexia caused her inability to focus on the short response/essay questions, which is neither caused by, nor can it be corrected by attention to habits.[204] Similarly dyscalculia cannot be overcome by additional practice.[205]
Similarly, the Parent, who spends the most time with the Student, in addition to her professional background as a teacher and [REDACTED], and her direct experience with [REDACTED], undisputedly notified the District repeatedly, via IEP meetings, phone calls, and emails, that ICT services were ineffective and the Student was suffering, both academically and emotionally. In addressing those concerns, the 2021-2022 IEP states only, “[The Parent] reported that she does not agree with the results of the Psychoeducational Evaluation” and “The Parent expressed concerns regarding [the Student’s] social-emotional state, which she feels is impacting [the Student’s] academic productivity.” Those notations, without more, do not reflect a meaningful consideration of the opinion of the Parent. The IEP further states, as did the Psychologist in her testimony, that the CSE rejected a 12:1+1 classroom option “as considered too restrictive at this time,” but provided no substantive explanation of why the option was too restrictive or when or under what conditions the CSE might revisit the option. Similarly, the DOE argued that it must consider the least restrictive environment when providing special education services; however, that obligation does not supersede its duty to ensure that the recommended program is appropriate to the Student’s unique special education needs in the first instance.
Because the Psychologist herself conceded that she did not have an “overall, in-depth presentation of the issues,” and because the CSE relied on minimal information in creating the IEP (most of which contained little to no substantive or comprehensive information), I do not find that the DOE provided an IEP likely to produce progress rather than regression, or that the IEP afforded the student with an opportunity greater than mere trivial advancement.[206] Consequently, the IEP was not reasonably calculated to provide some meaningful benefit to the Student, resulting in the DOE’s denial of a FAPE. [207]
Prong 2 – Appropriateness of Unilateral Placement Established
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral placement in a private school setting has the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’”[208] The Parent rejected the recommendation of the CSE, as memorialized in the August 2021 IEP, and unilaterally placed the Student in the Private School. The Parent provided the school’s Program Description, the Student’s class schedule and attendance records, enrollment contract, tuition affidavit, report card, progress reports, School FAQ and office hours, and the CV and testimony of the Assistant Head of the Private School.[209] Consistent with the Neuropsychologist’s recommendations, the Private School provides full-time special education for students with a variety of learning disabilities including dyslexia and executive dysfunction.[210] The school provides 10:1 and 8:1 formats for its classes,[211] in cohorts of students with similar learning strengths and challenges, [212] plus a daily 1:1 “Focus” period,[213] all taught by instructors with Master’s degrees in Education and with prior experience working at the Private School.[214] Additionally, the Private School refined that specialized instruction every week.[215] The Assistant Head of the Public School attested that the Student exhibited “tremendous growth” in virtually all areas of study, [216] as evidenced by the Student’s report card and progress reports, and showed no signs of anxiety.[217] Although evidence of academic progress does not itself establish that the private placement offers adequate and appropriate education under the IDEA,[218] it is relevant when determining whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.”[219] The Student’s report card reflected letter grades of one B+, five A-, and one A.[220] Her 10-page, year-end progress report showed, for example, her ability to: (1) independently draft multi-paragraph essays using topic sentences, follow-up detail sentences, and concluding sentences, 80 percent of the time; (2) Correct capitalization and punctuation errors 80 percent of the time; (3) Combine sentences into a compound sentence with correct conjunctions and transition words with 85-percent accuracy; (4) Identify vowel teams, diphthongs, and digraphs with 90-percent accuracy; and (5) Consistently solve and graphs linear equations.[221] I find the testimony of the Assistant Head of the Private School and supporting documentary evidence to be detailed, consistent, and credible. I further find that the Parent established that her placement of the Student in the Private School provides educational instruction specially designed to meet the unique needs of the Student, supported by such services as are necessary to permit her to benefit from that instruction.[222]
Prong 3 – Equitable Considerations Favor the Parent
Although the hearing officer may deny the Parent tuition reimbursement for: (1) unreasonably rejecting the DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (2) failing to make the student available for an evaluation; or (3) failing to timely notify the DOE of her intent to reject the proposed IEP and enroll the student in a private school at public expense,[223] no evidence supports such a finding in this case. The DOE made no claim and provided no evidence that the Parent behaved unreasonably. Moreover, the Parent herself requested a reevaluation and made the Student available for that assessment. Last, the Parent placed in evidence a copy of her Ten Day Notice of Parent’s Intent to reject the August 2021 IEP, place the Student into private school, and seek funding and reimbursement.[224]
The Parent’s Enrollment Agreement and Tuition Affidavit establish that the Private School charged $72,013.20 for the 2021-2022 school year, and that the Parent paid out of pocket $1,900 in eight installments, resulting in a balance due of $70,113.20.[225]
Reimbursement of the IEE Warranted
If a parent disagrees with the DOE’s evaluation or re-evaluation of the student, she has the right to request an IEE at public expense.[226] Upon making that request, the District must, without unnecessary delay, either ensure that an IEE is provided at public expense, or file a due process complaint notice to request a hearing to show that its evaluation is appropriate, or that the IEE obtained by the parent does not meet the District’s criteria.[227] Here, the Parent testified that she was cc’d on an email sent to the DOE by her attorney requesting reimbursement for the cost of the Neuropsychologist’s IEE.[228] Additionally, the Parent provided a copy of that written request.[229] Although the DOE contends that the Parent provided insufficient proof that she actually sent the email, the Parent testified that she specifically recalled the event because she recognized the name of the email recipient from prior dealings involving [REDACTED]s.[230] The Parent’s testimony throughout the hearing was thorough, consistent, and detailed, and I find it credible in its entirety. In the absence of any evidence that the DOE already reimbursed the Parent for the IEE or filed a DPC to contest it, reimbursement to the Parent is due.[231]
Other than the relief set out in my Order below, I find that no basis in the record to support any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall reimburse the Parent the tuition payments made to the Private School for the Student’s placement for the 2021-2022 school year in the sum of $1,900. (One Thousand Nine Hundred Dollars).
- • FURTHER ORDERED that, the DOE shall fund the remaining tuition directly to the Private School for the Student’s placement for the 2021-2022 school year in the sum of $70,113.20. (Seventy Thousand One Hundred Thirteen Dollars and Twenty Cents).
- • FURTHER ORDERED that, the DOE shall reimburse the Parent’s for the cost of the Neuropsychologist’s IEE in the sum of $5,000. (Five Thousand Dollars).
SO ORDERED.
DATED: July 22, 2022
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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.
DISTRICT’S EVIDENCE
Exhibit
Title
Date
Pages
1
-
-
-
2
IEP
12/08/20
17
3
Transcript
6/08/21
1
4
Social History Update
6/02/21
3
5
Prior Written Notice
2/08/21
3
6
Prior Written Notice
11/30/20
3
7
Psychoeducational Examination
7/16/21
4
8
Level 1 Student Vocational
7/14/21
2
9
IEP (Revision)
9/13/21
22
10
Notice of IEP Meeting
8/04/21
3
11
Request for Reevaluation
5/28/21
3
12
IEP
8/10/21
23
13
Neuropsychological Evaluation
8/01/17
11
14
Classroom Observation
11/20/17
1
15
Report Card
Undated
(printed 5/20/21)
2
16
Speech-Language Evaluation
3/13/17
4
17
Special Education Remote Learning Plan
4/02/20
3
18
Consent
6/04/21
1
19
Notice of IEP Meeting
11/30/20
3
20
Prior Written Notice
8/29/21
3
21
Graduation Tracker – Regents Diploma
June 2021
2
22
Graduation Tracker – Advanced Regents Diploma
June 2021
2
23
Due Process Response
6/22/22
3
PARENT’S EVIDENCE
Exhibit
Title
Date
Pages
A Complaint 2/21/2022 9
B Ten Day Notice of Intent 8/30/2021 3
C IEE Request Letter 2/09/2022 2
D - - -
E Neuropsychological Evaluation 8/17/2021 43
F Program Description undated 1
G Class Schedule 5/31/2022 1
H Attendance Records 5/31/2022 1
I Enrollment Contract 8/31/2022 7
J Tuition Affidavit 5/31/2022 1
K Report Card Fall 2021 1
L Progress Report Fall 2021 11
M Progress Report Winter 2021-2022 7
N Progress Report Spring 2022 10
O Questions and Answers Guideline Undated 8
P Resume of [REDACTED] Undated 2
Q Office Hours Schedule 2/09/2021 1
R Notice of Issue to [REDACTED] 3/11/2021 1
S Notice of Issue to [REDACTED] re Failing Grade 1/25/2021 1
T Notice of Test Accommodation Issue to [REDACTED] 2/02/2021 1
U Notice of Issue to [REDACTED] re Failing Grade 3/10/2021 1
V Notice of Issue to [REDACTED] re Failing Grade 3/10/2021 1
W Tax Returns 2021 2
X Notice to [REDACTED] re Implementation of Makeup Work Accommodation 1/25/2022 1
Y
IEP 12/06/2018 14 Z IEP 12/17/2019
13
AA
Proof of Receipt Date for Notices
8/31/2021
2
BB
Appearance Subpoena for [REDACTED]
6/22/2022
1
IHO EVIDENCE
Exhibit
Title
Date
Pages
I
DOE – Closing Brief
7/06/2022
9
II
Parent – Closing Brief
7/06/2022
21
Footnotes
[1] The Special Education Math Teacher appeared on both parties’ witness lists.
[2] Ex. A.
[3] Ex. A-1, A-2, A-5 thru A-8; 12-1 thru 12-23.
[4] The District revised the IEP on September 13, 2021, to include transportation services. Ex. 9-21.
[5] Ex. A-5 thru A-7.
[6] Tr. 309 9-25; 310 1-5; 311 1-9; 312 3-10; 313 1-11, 20-22, 314 4-25; 315 1-25; 317 1-15; 321 20-25; 322 1-3; 323 10-25; 324 1-23.
[7] Ex. A-2, A-7 thru A-8.
[8] Ex. Y-1.
[9] Ex. 2-1, 9-1, 12-1,Y-1, Z-1.
[10] Ex. Y-1, Z-1.
[11] Ex. Y-1, Y-2.
[12] Ex. 2-2, 2-4, 9-5, 9-8, Y-3, Z-3.
[13] Ex. 2-1, 9-5.
[14] Ex. 9-6, 9-7, 9-12, 9-13, 12-21.
[15] Ex. 12-23.
[16] Ex. 12-6.
[17] Ex. 12-15, 12-17
[18] Ex. 12-21
[19] Id.
[20] Tr. 70 22-25; 71 1-125; 72 1-72.
[21] Ex. 2-12-2-17.
[22] Ex. Z-1-Z-13.
[23] Ex. 3-1.
[24] Ex. 21-1, 22-1.
[25] Tr. 95 16, 121 20-25, 122 3-16, 123 1-10.
[26] Tr. 98 12-16, 19.
[27] Tr. 99 6-20.
[28] Tr. 101 3-7.
[29] Tr. 99 23-25.
[30] Tr. 98 17-18.
[31] Tr. 101 14-19.
[32] Tr. 101 19-20.
[33] Tr. 98 24.
[34] Tr. 107 4-5, 8-9.
[35] Tr. 107 14-18.
[36] Tr. 108 24.
[37] Tr. 100 23.
[38] Tr. 103 20-22, 25.
[39] Tr. 100 6-8.
[40] Tr. 107 22.
[41] Tr. 109 14-19.
[42] Tr. 123 18-25, 124 2, 125 8-11, 15-19.
[43] Tr. 126 2-13.
[44] Tr. 113 18, 126 18.
[45] Ex. Z-1, Tr. 118 8-9, 118 18-21.
[46] Ex. Z-12, Tr. 119 19.
[47] Tr. 104 2-4, 106 23-24, 107 1-4.
[48] Tr. 131 2-3.
[49] Tr. 132 9-25, 133 1-12.
[50] Ex. 2-1-2-17, 12-5; Tr. 107 12-15, 108 8-10, 19-22, 109 4.
[51] Tr. 112 23-25, 113 1-23.
[52] Tr. 114 9-14.
[53] Ex. 12-1-12-5; Tr. 114 24-25. The Student’s “Average” scores included Verbal Comprehension, Visual Spatial, Fluid Reasoning, Working Memory, Processing Speed, Full Scale IQ, Reading, Letter-Word Identification, Mathematics, Calculation, Written Language, Spelling, and Writing Samples. Student’s “High Average” scores included Passage Comprehension and Applied Problems (math). The evaluation measured her IQ at 103.
[54] Tr. 111 24-25, 112 1-9, 13.
[55] Tr. 112 15-18, 21.
[56] Ex. 12-5; Tr. 134 17-21. The June 2021 teacher report, as quoted in the IEP read in total: “Student still tends to work a bit too quickly when working independently. In full group class she tends to have her camera off and does not usually respond in the chat. She has benefitted from regularly scheduled office hour sessions which she has been reliably attending. Her independent work continues to be a challenge. She has fallen off in terms of work completion starting around May (not completing her short daily homework assignments or only doing them partially). It appears that her motivation and connection to school has greatly declined leading up to the end of the year.”
[57] Tr. 139 4-12.
[58] 16-17, 22, 140 9, 13-15.
[59] 13-15.
[60] Id.
[61] Tr. 143 11-12, 15-21, 144 8-11.
[62] On redirect, the Psychologist testified that the CSE reviewed the Student’s second-semester grades for the 2020-2021 school year. Ex. 15-1.
[63] Ex. 3-1, 15-1, Tr. 135 10-11; 145 5-10.
[64] Tr. 147 18-25, 148 1-16.
[65] Tr. 124 19-25, 125 1-9, 127 2-4.
[66] Tr. 129 17-25,
[67] Tr. 129 23-25, 130 1.
[68] Tr. 125 10-12, 23-25.
[69] Ex 12-15; Tr. 126 15-25, 127 1-2.
[70] Ex. 12-8; Tr. 155 6-7, 19-25, 116 1, 3, 7-10.
[71] Ex. 12-10-12-13; Tr. 119 1-7, 120 10-25, 121 1-25, 122 1-25, 123 1-23.
[72] Tr. 149 4-12.
[73] Tr. 149 14-19.
[74] Tr. 150 9-18.
[75] Tr. 192 11-15, 193 6-7, 14-17.
[76] Tr. 192 11-15, 193 6-7, 14-17, 220 5-8.
[77] Tr. 220 8-13.
[78] Tr. 221 23-25, 222 1-5.
[79] Tr. 195 3-5.
[80] Tr. 196 16-20, 197 23-25, 198 1-2, 199 6-9.
[81] Tr. 201 3-7.
[82] Tr. 196 16-25, 197 1-20.
[83] Id.
[84] Tr. 201 14-15, 25, 202 1-11.
[85] Tr. 202 21-25.
[86] Tr. 203 22-25, 204 1-22.
[87] Tr. 204 23-25, 205 1-4.
[88] Tr. 225 8-9, 226 9-11, 24-25; 232 3.
[89] Tr. 288 13-21.
[90] Tr. 229 4-16.
[91] Tr. 216 6-10.
[92] Tr. 216 12-14.
[93] Tr. 210 8-11.
[94] Tr. 206 8-25, 207 25, 208 1.
[95] Tr. 208 6-16.
[96] Tr. 209 7-11.
[97] Tr. 232 24-25, 233 4-14.
[98] Tr. 234 1-20.
[99] Tr. 210 15-19; 234 24-25, 235 1-15.
[100] Tr. 211 9-23.
[101] Tr. 212 11-12.
[102] Tr. 212 13-16.
[103] Tr. 238 22-25, 239 1-9, 12.
[104] Id.
[105] Ex. IHO I.
[106] Id.
[107] Id.
[108] Id.
[109] In her opening statement, the Parent made additional assertions about the District’s failure to implement the IEP over the DOE’s objection (6/28/2022 Tr. 80 11-25; 81 1-3, 17-18, 22-25; 82 1-5; 83 3-4, 12-16). Because those claims are not pleaded on the DPC, they will not be considered. 8 NYCRR 200.5(j)(1)(ii); 20 U.S.C. 1415(f)(3)(B).
[110] Tr. 166 16, 167 10-20; Ex. 7-1-7-4.
[111] Tr. 167 13-20.
[112] Tr. 168 2-8.
[113] Tr. 168 13-17.
[114] Tr. 169 3-16.
[115] Ex. E-1-E-43. Documents included the Student’s IEPs for the 2017-2018, 2018-2019, 2019-2020 school years; the July 2021 psychoeducational evaluation; a prior 2017 psychoeducational evaluation; a Social History Update dated June 2, 2021, teacher reports from 2020-2021.
[116] Tr. 172 9-21.
[117] Tr. 172 12-19.
[118] Tr. 172 21-24.
[119] Tr. 173 3-8.
[120] Tr. 173 16-22.
[121] Tr. 174 23-25, 175 1-3, 7-14.
[122] Tr. 17617-22.
[123] Tr. 170 16-17.
[124] Tr. 169 22-25, 170 1-11, 171 7-12.
[125] Tr. 171 16-20.
[126] Ex. E-1-E-43; Tr. 170 16-17, 172 21-24, 173 3-8.
[127] Tr. 256 18-20, 262 20, 22
[128] Tr. 261 22-25, 262 1-7.
[129] Id.
[130] Tr. 261 5-18; 262 10-13,
[131] Tr. 280 19-25, 281 1-3, 282 18-21.
[132] Tr. 263 7-14.
[133] Tr. 268 1-25, 269 1-2, 18-21, 273 19-25, 274 1-8, 276 4-14,
[134] Tr. 267 16-24.
[135] Tr. 267 11-13.
[136] Tr. 269 13-25, 270 1-6
[137] Tr. 270 9-14.
[138] Tr. 276 18-25, 277 1-25, 278 1-25, 279 1-20.
[139] Tr. 275 3-5. See Ex. K-1 (Student’s report card), L-1-L-11, M-1-M-7, N-1-N-10 (Quarterly progress reports).
[140] Tr. 286 14-18, 287 1-5.
[141] Tr. 287 11-25
[142] Tr. 287 20-25.
[143] Tr. 288 7-10.
[144] Tr. 288 10-11.
[145] Tr. 288 13-20.
[146] Tr. 289 1-4.
[147] Tr. 289 4-10.
[148] Tr. 289 16-25.
[149] Tr. 289 24-25, 290 1-2.
[150] Tr. 290 11-16.
[151] Tr. 290 11-25, 291 3-4, 8-12.
[152] Tr. 291 16-25, 292 1-2.
[153] Tr. 292 6-8, 20-25, 293 1-17.
[154] Tr. 294 5-8.
[155] Tr. 294 11-13.
[156] Tr. 294 22-24.
[157] Tr. 295 1-25.
[158] Tr. 296 5-12
[159] Tr. 296 20-25, 297 1-10, 314 4-11. See Ex. R-1, S-1, T-1, U-1, V-1, X-1.
[160] Tr. 314 15-20, 315 15-16.
[161] Tr. 317 3-10.
[162] Tr. 317 11-15.
[163] Ex. C, Tr. 319 23-25, 320 1-10.
[164] Tr. 321 8-9
[165] Tr. 321 9-17.
[166] Tr. 321 17-19.
[167] Tr. 321 20-21.
[168] Tr. 321 22-25, 322 1-3.
[169] Ex. IHO II.
[170] Id.
[171] Id.
[172] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[173] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[174] U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[175] U.S.C. § 1415(f)(3)(E)(i.
[176] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[177] Rowley, 458 U.S. at 203.
[178] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132.
[179] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[180] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); Rowley, 458 U.S. at 192.
[181] C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).
[182] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[183] Ex. 2-1-2-17, 12-5; Tr. 107 12-15, 108 8-10, 19-22, 109 4.
[184] Tr. 149 14-19.
[185] Ex. 7-1.
[186] Id.
[187] Ex. 2-2.
[188] Id.
[189] Ex. 2-1-2-2.
[190] Id.
[191] Ex. 2-1.
[192] Ex. 3-1, 15-1.
[193] Id.
[194] Id.
[195] Id.
[196] Id.
[197] Id.
[198] Ex. 3-1, 15-1, Tr. 135 10-11; 145 5-10.
[199] Ex. 12-8; Tr. 155 6-7, 19-25, 116 1, 3, 7-10.
[200] Ex. E-32.
[201] Rowley, 458 U.S. at 181.
[202] Ex. Z-1.
[203] Ex. 2-1.
[204] Ex. 33.
[205] Id.
[206] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[207] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); Rowley, 458 U.S. at 192.
[208] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d. Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[209] Ex. F-Q.
[210] Id., Tr. 268 1-25, 269 1-2, 18-21, 273 19-25, 274 1-8, 276 4-14.
[211] Tr. 267 11-13.
[212] Tr. 263 7-14.
[213] Tr. 269 13-25, 270 1-6
[214] Tr. 267 16-24.
[215] Tr. 268 1-25, 269 1-2, 18-21, 273 19-25, 274 1-8, 276 4-14,
[216] Tr. 276 18-25, 277 1-25, 278 1-25, 279 1-20.
[217] Tr. 275 3-5. See Ex. K-1 (Student’s report card), L-1-L-11, M-1-M-7, N-1-N-10 (Quarterly progress reports).
[218] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).
[219] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[220] Ex. K-1.
[221] Ex. N-1-N-10.
[222] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[223] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[224] Ex. B.
[225] Ex. I-J.
[226] NYCRR § 300.502(g)(1).
[227] NYCRR § 300.502(g)(1)(iv).
[228] Tr. 319 23-25, 321 1-10.
[229] Ex. C.
[230] Tr. 319 23-24, 320 8-10.
[231] NYCRR § 300.502(g)(1).