NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACTS & DECISION
Case Number: N/A
NYS Identifier Number 578068
Student’s Name: [Redacted]
Date of Birth: [Redacted]
District: [Redacted] UFSD
Hearing Requested By: Parent
Dates(s) of Hearing: 10/12/22, 11/17/22, 01/26/23,
03/09/23, 03/14/23, 03/15/23,
04/26/23 & 05/03/23
Actual Record Close Date: 10/16/27
Hearing Officer: Edgar De Leon
NYS
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[Redacted] Attorney S.D. 10/12/21 (V)
11/17/22 (V)
01/26/23 (V)
03/09/23 (V)
03/14/23 (V)
03/15/23 (V)
04/26/23 (V)
[Redacted] Dir. of Pupil Per. Services S.D. 03/09/23 (V)
03/14/23 (V)
03/15/23 (V)
04/26/23 (V)
[Redacted] Attorney PARENT 10/12/22 (V)
11/17/22 (V)
01/26/23 (V)
03/09/23 (V)
03/14/23 (V)
03/15/23 (V)
04/26/23 (V)
[Redacted] Father PARENT 03/09/23 (V)
03/14/23 (V)
03/15/23 (V)
04/26/23 (V)
[Redacted] Mother PARENT 03/09/23 (V)
03/14/23 (V)
03/15/23 (V)
04/26/23 (V)
[Redacted] Observer PARENT 03/15/23 (V)
NYS
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
01 DPC 11/17/22 S.D. 07
02 Request for Consent 12/20/19 S.D. 06
03 Request for Consent 03/10/20 S.D. 03
3A [REDACTED] Progress Report 12/__/19 S.D. 17
04 IEP Annual Review 08/27/20 S.D. 15
05 Neuropsychological Evaluation 06/16-19/20 S.D. 30
06 CSE Meeting Notice 08/13/20 S.D. 05
07 Request for Consent 09/17/20 S.D. 09
08 [REDACTED] Progress Report 12/__/20 S.D. 22
09 IEP Annual Review 05/05/21 S.D. 18
10 CSE Meeting Notice 03/15/21 S.D. 08
11 10-Day Notice 06/07/21 S.D. 01
12 Fall Report __/__/21 S.D. 15
13 Standardized Assessments 09/27/21 S.D. 07
14 Assessment of Reading __/__/__ S.D. 03
15 Paperback Book __/__/__ S.D. 02
16 Reading Evaluation 06/01/22 S.D. 07
17 Class Profile 2021-2022 S.D. 07
18 Class Profile 2020-2021 S.D. 03
19 Affidavit of [REDACTED] 03/06/23 S.D. 14
20 Affidavit of [REDACTED] 03/13/23 S.D. 06
21 Closing Statement 09/22/23 S.D. 32
***School District exhibit “15” was not formally received in evidence. (T-22)***
A (SD #20) FOFD (T-483-4) 10/23/18 PARENT 40
B Email 02/__//20 PARENT 02
C IEP Meeting Recording 05/05/21 PARENT N/A
D [REDACTED] Progress Report 12/__/20 PARENT 22
E [REDACTED] Progress Report 06/__/21 PARENT 22
F Writing Assessment Program __/__/21 PARENT 02
G Permission to Observe 10/22/20 PARENT 01
H [Redacted] Contract 06/24/21 PARENT 05
I [Redacted] Acceptance 04/11/22 PARENT 09
J Affidavit of [REDACTED] 03/14/23 PARENT 14
K Email 03/11/21 PARENT 02
L Closing Statement 09-22-23 PARENT 23
***Parents’ exhibit “A” was not formally received in evidence Exhibit “C” was received as modified on the record. (T-27-9)***
N/A N/A N/A IHO N/A
NYC
On September 2, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a [Redacted] year old student who attended two private schools during the 2020-2021 and 2021-2022 school years, and the [Redacted] Union Free School District, concerning the student’s special education program. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on October 12, 2022, November 17, 2022, January 26, 2023, March 9, 2023, March 14, 2023, March 15, 2023, April 26, 2023 and May 3, 2023. The parties opted to submit written closing statements which were received on September 22, 2023,. (T-612, D-21 & P-L) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
In this case, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2020-2021 and 2021-2022 school years. At the impartial hearing, the Parent seeks the following relief:
(a) Reimbursement for the student’s placement at the “[REDACTED]” School for the 2020-2021 in the amount of $70,110; and
(b) Reimbursement for the student’s placement at the [Redacted] School for the 2021-2022 in the amount of $85,133; and
(c) Reimbursement for the Parents’ mileage costs of transporting the student to and from the “[REDACTED]” School during the 2020-2021 school year; and
(d) Reimbursement for the Parents’ mileage costs of transporting the student to and from the [Redacted] School during the 2021-2022 school year; and
(e) Reimbursement of the Parents’ costs for the June 2020, independent Neuropsychological Evaluation in the amount of $5,000; and
(f) Payment of the Parent’s attorney fees and expenses associated with representation in this matter; and
(g) Any further relief, including compensatory education, which the Hearing Officer deems just and proper.
At the hearing, the Parent agreed that the school years 2018 to 2019 and 2019 to 2020 are barred by the statute of limitations. (T-44-52) The Parents filed an amended due process complaints for the 2020-2021, 2021-2022 school year and argues that the statute of limitations is tolled since 2020 due to the COVID pandemic and the state regulations and rules that were issued as a result of that pandemic. (T-5-6)
The School District maintained that the hearing officer should preside over the Parents’ “504” claim and issue a decision in the context of the hearing. (T-6-7) The Parents’ noted that the School District did not serve and file a formal “answer” in this case, but it is noted that it did serve and file a “Prior Written Notice.” (T-8-13) The Parents stipulated to the admission of all of the School District’s exhibits with the exception of exhibit “15.” (T-22) Accordingly, School districts exhibits School District 1, 2, 3A, 4 as amended, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19 were received in evidence and exhibit 15 was not received in evidence. (T-22-3) The School District only objected to Parents’ exhibit “A” and “C.” (T-27-8) However, Parents’ exhibit “C” was subsequently received as modified on the record. (T-28-9)
THE DOE’S CASE
The DOE called (3) witnesses to testify on its behalf and submitted (20) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence on behalf of the DOE is as follows:
The School District argues that the student is currently [Redacted] years old and classified by the “Committee on Special Education” (“CSE”) as having a learning disability, a diagnoses of autism and ADHD and primarily average scores in incredulous fluid reasoning, visual-spatial skills and his verbal comprehension. (T-36) He has significant deficits in his processing speed and working memory. (Id.)
The School District proffered that the evidence would show that during the 2019-2020 school year, the district sent the family three separate prior written notices requesting consent to evaluation and that the Parents refused to sign the district's consent allowing the district to reevaluate the child. (T-37) Thereafter, the Parents agreed to provide a private evaluation for the CSE to consider. (Id.) In sum, the School District argues that it offered the student a FAPE and that the student’s private schools placement was inappropriate under the law. (T-38-45) The School district agrees that the student was designated as a special education student going into the 2020-2021 school year. (T-46) The student was not decertified for the 2021-2022 school year and was designated to receive services on a ten-month basis. (T-47) In this case, the School District will defend the student’s “IEPs” dated August 27, 2020 and May 5, 2021. (T-48, D-4 & D-9)
The first witness for the School District was the Director of Pupil Personnel Services for the School District during the 2019-2020 and 2020-2021 school years. (D-19) She testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (Id.) In sum, substance and relevant part, the witness testified as follows:
4. Prior to serving as an Assistant Director for [SCHOOL DISTRICT NAME], I was the CPSE/CSE Chairperson from 2007 to 2014.
8. The Student's educational history is provided for background purposes. The Student attended the District's schools from kindergarten through 4th grade (the 2015-2016 school year). The Student attended the [“[REDACTED]”] School from 2016-2017 (5th grade) through 2020-2021 (eighth grade plus an extra year). While [“[REDACTED]”] typically ends at 8th grade, the Student attended one additional year of the [“[REDACTED]”] School after his cohort was scheduled to move on to high school. He attended the [“[REDACTED]”] School for a total of five years.
9. At the time of the development of the IEP for the 2020-2021 school year, the Student had diagnoses of Autism, ADHD and a specific learning disability. In reading and writing.
10. In preparing for the 2020-2021 school year, the District attempted to evaluate the Student but the Parents refused to provide consent for the District to evaluate the Student. The District sent the Parents a Prior Written Notice requesting consent to evaluate the Student on December 20, 2019. The District did not receive a signed consent form. In accordance with District's practice, the District resent the Prior Written Notice to the Parents on January 13, 2020 and January 29, 2020. The District did not receive a signed consent form in response to the requests for consent.
12. On March 10, 2020, the District sent the Parents another Prior Written Notice requesting consent for a reevaluation. The revised consent contemplated that the Parent would provide a privately obtained neuropsychological evaluation and the District would conduct supplemental testing. The Prior Written Notice contemplates that the Parents were going to provide the private testing. I did not agree to pay for the private evaluation. The Parents did not return the signed consent for a reevaluation.
13. On June 8, 2020, the District held an annual review meeting for the Student. I served as the chairperson for the meeting. The CSE reviewed the December 2019 Student Progress Report from the [“[REDACTED]”] School.
14. At the meeting on June 8, 2020, the CSE considered the reports from the [“[REDACTED]”] staff. In light of the Student's reading and writing deficits, the CSE reached a consensus to recommend a special class setting for ELA, social studies and science. The Student's math scores were a relative strength. The CSE discussed the options of placing the Student in either a special class for math, or an integrated co-teaching setting. The CSE was unable to reach a consensus on the math class and agreed to table that discussion to gather more data and then reconvene during the summer.
16. The CSE also recommended a Resource Room together with the related services of speech and language therapy and counseling. The CSE recommended an occupational therapy consultation to assist in the Student's use of sensory strategies to maintain regulation. The CSE also recommended access to a word processor and word prediction/speech-to-text software to assist in writing assignments. The CSE recommended audiobooks to enable the Student to access grade level curriculum despite his reading deficit.
17. On the basis of the reports from the [REDACTED] staff and the old testing, the CSE discussed and recommended goals and program modifications and accommodations. The CSE recommended reading, writing and math goals to address the Student's reading weaknesses. In light of the Student's difficulty with social issues, the CSE recommended pragmatic language and social skills goals. The CSE also recommended a goal to use sensory strategies to maintain regulation. The Parents were in agreement with the recommended goals. Neither the Parents, nor the [REDACTED] staff requested or recommended any additional goals that were not included in the IEP.
18. The CSE also recommended numerous program modifications and accommodations. The modifications were selected to address the Student's difficulty with attention. Accommodations like break down tasks, refocus and redirection, check for understanding, directions clarified, frequent breaks, preview materials, preferential seating and sensory strategies were all intended to ensure the Student was aware of the lessons and assigned work. The modified curriculum, class notes, graphic organizers, and word processor were designed to assist in writing assignments. There were no objections to the program modifications and accommodations from the Parents or the [REDACTED] staff. Neither the Parents nor the [REDACTED] staff requested or recommended modifications and accommodations that were not included on the IEP.
19. The CSE reconvened on August 27, 2020. At that time, in addition to the programs and services previously recommended, the CSE recommended the Student attend a special class for math.
20. In my opinion, the proposed IEP for the 2020-2021 school year offered the Student the opportunity to make meaningful progress. The IEP was developed based upon the input from the Parents and the representatives from the Student's private school. The goals on the IEP were tailored to the Student's specific needs. Since the class is limited to only 12 students, the special class setting provides numerous opportunities for both individual and small group instruction. In the special class, the curriculum is modified and instruction is differentiated to meet the needs of each student. The class is also staffed with a certified teaching assistant. A teaching assistant is permitted to deliver instruction under the supervision of a certified teacher. Having two adults that are capable of delivering instruction provides multiple opportunities for individual and small group instruction throughout the school day. In addition, the program modifications and accommodations would have addressed the Student's deficits in reading and attention.
21. The class follows the Columbia Teachers College workshop model. The teacher starts by delivering a mini lesson to the whole group. The teacher then divides the class up into smaller groups, based upon their needs, to allow the students to work on the skills with peers that have similar needs. During that time, the teacher and teaching assistant are able to deliver small groups and individualized instruction.
22. The Student would have received reading instruction during the ELA and Resource Room classes. During the 2020-21 school year, the District offered the Corrective Reading program. Corrective Reading is a multisensory, research-based reading program that provides reading support for students that are below grade level. The program would have been delivered in the Resource Room. The Corrective Reading program would have been delivered by a teacher who is certified as a Reading Teacher. The teacher has both the qualifications and the legal authority to deliver the Corrective Reading program.
23. The Student would have had access to instruction alongside his nondisabled peers and peers from his community during lunch, recess and specials like art, music and Physical Education. Access to nondisabled peers is an important element of an appropriate education for the Student. Peer modeling is a valuable instructional tool. While Students learn from teachers, they also learn from their peers. Having the ability to interact with nondisabled peers is an important aspect of an education, especially for a child like the Student, who has social and pragmatic language issues.
24. The District was capable of implementing the IEP.
25. The Parents had expressed concerns as to whether the other students in the assigned class constituted an appropriate functional grouping for the Student. I prepared a class profile for the Parents. In my opinion the profiles of the other students in the class are very similar to the Student, particularly in the area of his reading and writing deficits. Each of the students in the class had reading deficits which were similar to those of the Student.
26. I am not aware of the Parents providing the District with notice of a unilateral placement for the 2020-2021 school year. Since the Parents did not seek tuition reimbursement for the previous years, I had no reason to believe that the Parents intended to seek tuition reimbursement for the 2020-2021 school year.
27. The District continued its efforts to obtain consent to evaluate the Student. On September 17, 2020, the District sent the Parents a Prior Written Notice requesting consent to evaluate the Student. The District was seeking consent to conduct its own testing. The District did not receive a signed consent form from the Parents. In accordance with District's practice, I resent the Prior Written Notice to the Parents on October 9, 2020 and November 5, 2020. I did not receive a signed consent form in response to those requests for consent.
28. The CSE convened on May 5, 2021 to develop an IEP for the 2021-2022 school year. The CSE reviewed the private evaluation conducted by [NAME], as well as the December 2020 [REDACTED] School Report Card. Since the Parents did not sign consent for a reevaluation, the District was unable to complete its own testing.
29. According to the [REDACTED] Report card, the Student still struggled in the same areas he previously struggled in math. While the Student could complete one step word problems, he still needed support understanding math vocabulary, determining the question being asked and completing multistep problems, among other things. In the area of computation, he still needed support understanding the vocabulary of algebra. Presumably, he had not made any progress solving inequalities as that topic was listed as a subject of future focus. The report card indicated he could tell time to the half hour, determine the value of a collection of coins and bills, and complete money computations with a calculator but needed support to complete money computations without a calculator. I was able to conduct an observation of the Student during a math class at [REDACTED]. In my professional opinion, the math skills being taught at the [REDACTED] School are several grades below the curriculum being taught in the [SCHOOL DISTRICT NAME] School District. In [SCHOOL DISTRICT NAME], Students are expected to independently compute monetary transactions and tell time to the minute in the third grade.
30. Once again, I served as the chairperson for the May 5, 2021 CSE meeting. In light of the Student's reading and writing deficits, the CSE recommended a special class setting for ELA, math, social studies and science. The CSE also recommended a Resource Room together with the related services of speech and language therapy and counseling. The CSE again recommended an occupational therapy consultation to address the Student's sensory deficits. The CSE recommended access to a word processor and word prediction/ speech to text software to assist the Student in his writing assignments. The CSE also recommended audio books to enable the Student to access grade level curriculum.
31. The CSE discussed and recommended goals and program modifications and accommodations. The goals were based upon the evaluations and the reports from the parents and the [REDACTED] representatives. The Parents were in agreement with the goals.
32. The program modifications and accommodations were recommended for the same reasons as set forth above. There were no objections to the program modifications and accommodations from the Parents or the [REDACTED] staff. Neither the Parents, nor the [REDACTED] staff requested or recommended goals or program modifications and accommodations that were not included in the IEP.
38. In my opinion the [REDACTED] School program was too restrictive for the Student. The classes at the [REDACTED] School generally consist of 4-6 students. The Student did not need to be placed in a class of 4-6 students. Under New York State Education Department regulations, students that are typically placed in a special class with a 6:1 ratio have much more significant management needs and usually have a different cognitive profile. Upon information and belief, at the [REDACTED] School, which is located in [Redacted], the Student did not have access to nondisabled peers and did not have access to an education alongside peers from his community. The [REDACTED] School does not follow the rigorous New York State approved curriculum and the teachers are not certified by the State of New York for the provision of special education programs and services to students with disabilities.
39. In my opinion the [Redacted] program was too restrictive for the Student. The Parents did not provide any information to the CSE suggesting that the Student needed a residential program for the 2021-2022 school year. The [NAME] evaluation does not recommend a residential setting. Upon information and belief, the Parents believe strongly in sending their children to private boarding schools for high school. Upon information and belief, the Parents would have sent the Student to a private boarding school regardless of the program offered by the District. Further, upon information and belief, at the [[Redacted]] School, which is located in [Redacted], the Student did not have access to nondisabled peers and did not have access to an education alongside peers from his community. The [Redacted] School does not follow the rigorous New York State approved curriculum and the teachers are not certified by the State of New York for the provision of special education programs and services to students with disabilities.
40. The Amended Due Process complaint seeks reimbursement for the cost of a private evaluation. I do not believe the District should be required to pay for the evaluation as the District requested consent to conduct a reevaluation on numerous occasions and the Parents declined consent for the District to evaluate the Student. (D-19)
On cross examination the witness testified that she stopped working at the School District on June 30, 2021. (T-72) She does not have any familiarity with the student's educational program beyond when she left the School District. (T-73) Although the “prior written notice” says “contemplates the private testing,” that does not mean the district was agreeing to the private evaluation. (T-77) The district was willing and able to provide an evaluation for the student. (T-78) She cannot prove that the Parents did not return the consent form. (Id.) She is aware that the family travels internationally fairly regularly. (T-79) She cannot say whether or not the Parents were not cooperative about consenting to the evaluations when the email shows that the emails went to her spam folder. (T-83) She believed that the email chain shows a good faith attempt by the Parents to work with her on the evaluations. (T-84)
The witness testified that she thinks the student’s independent Neuropsychological Evaluation was an accurate evaluation. (T-85 & S.D.-5) The School District was going to provide the student with "Corrective Reading,” which is a multisensory research-based reading program that provides reading support for students." (T-88) It is a program recognized as helping dyslexic students. (T-89) She had staff at this time that were trained in Orten-Gillingham. (T-90)
The witness testified that depending on the aim and goal of the lesson to be delivered, the special education teacher can direct and support the work that a student is doing with a teaching assistant. (T-94) She does not feel the Parents had reasonable cause for concern about the placement offered given the student’s prior history. (T-96) Many factors go into an intellectual disability category and three students having IQs of (70) and below in the proposed cohort, which qualifies as intellectually disabled, why did you think this was an does not mean intellectual disability, as it is one aspect of a profile. (T-100) IQ is not the only factor in looking at appropriateness of program needs and supports and services. (T-101) She does not know how the student was transported to “[REDACTED]” school during the 2020-2021 school year. (T-102) She is also not sure if the student progressed or not at the “[REDACTED]” school. (T-104)
The witness concedes that she “observed” the student at the “[REDACTED]” school via “Zoom.” (T-105) However, based on where the camera was situated and seeing the student directly in the view, she does not believe she missed aspects of the class observed. (Id.) She does not know if the student was capable of doing grade or age-appropriate math at this point. (T-108) She believes the student’s 2021-2022 IEP was meaningfully different from his 2020-2021 IEP in that they had added additional support. (T-108-9) They had somebody “Wilson” trained in the 2020-2021 school year. (T-110) The “[REDACTED]” class only has four to six students which she believes was too restrictive a class size for the student. (T-114) The class she recommended could have a maximum of (12) students. (T-115) She cannot say whether the “[REDACTED]” school would also have the ability to increase the class size to twelve students. (T-117)
The witness further testified that she believes the Parents would like to send the student to a private boarding school regardless of the program offered by the district, because in the many years in which she has worked with the family, they have shared that their older child went to a boarding school. (T-117-8) Nevertheless, she cannot say with absolute certainty that the Parents would have rejected any program offered by the district. (T-119)
The witness also testified that she researched the [Redacted] school program via the internet and other colleagues. (T-120) Her research told her that the [Redacted] school was not appropriate because it does not follow the rigorous New York State approved curriculum and the teachers are not certified. (Id.) She does not believe that she spoke to anyone at the [Redacted] school about their program. (T-121) Although her affidavit says that the student does not have access to nondisabled peers at the [Redacted] school, she is not actually sure. (Id.) She cannot say that the one “Wilson” instructor the School District had for the 2020-2021 school year would have met all of the needs of all dyslexic students within the School District at that time. (T-123) She does not recall discussing the independent Neuropsychological Evaluation with the Parents, or if she offered the Parents one. (T-124) The CSE committee did not consider a neuropsychological evaluation for this student prior to the IEP meeting. (T-125-6)
On re-direct examination, the witness testified that she developed the student’s 2021-2022 program that has been in operation for several years at the School District.. (T-128) If she had received a consent form from the Parents she would have evaluated the student. (T-129) She did not have any conversations with the Parents about specifically the district paying for the private evaluation rather than just accepting the Parents' private evaluation. (T-131-2) She does not believe that for the 2020-2021 school year or the 2021-22022 school year, the Parents gave consent to conduct either a cognitive evaluation or an educational evaluation. (T-132)
The witness testified that in the special class setting, there are opportunities for both individualized instruction and small group instruction. (T-136) She believes that while the student has some scores that are in the average range, his working memory and his processing skills are severely delayed. (T-137) The Parents never gave her any indication that they intended to seek tuition reimbursement from the district for the 2020-2021 school year. (T-138-9) The witness affirmed that a teacher can use the Wilson program without being certified. (T-141) At the School District, during art, music, tech, phys. ed and recess the student be educated alongside nondisabled peers. (T-143)
On re-cross examination, the witness testified that the student's IEP is written on an individual basis and students are grouped based on their needs. (T-149) She does not recall if the Parents were definitely going to decline giving the School District consent to conduct evaluations. (T-150) The prior written notice that references the private evaluation, does not provide an endorsement of that evaluation. (T-153-4) She agrees that since district was transporting the student it was aware of his private school placement, and even if there might not have been actual “ten-day notice”, she knew the student was staying at the “[REDACTED]” school. (T-156)
The School District’s second witness is a school psychologist for the School District for (6) years. (T-184) She is a New York State certified school psychologist. (T-188) She attended two CSE meetings for the student in 2020 and 2021 and served as the school psychologist at the meetings. (Id.) She consulted with their team at the School District and believes there was a review of the “[REDACTED]” progress reports that were provided. (T-189)
The witness testified that the student’s indicate that he has potential with his verbal reasoning and with his abstract reasoning and with his nonverbal reasoning, but his difficulties with working memory and processing speed may make it harder for him to utilize those cognitive strengths. (T-199 & S.D.-4) The student demonstrated significant difficulties with sounding out words, spelling words, reading words that he may be more familiar with, and comprehending read text. (T-201) With a percentile range of nine the student is significantly below expectations overall in language. (T-204) Word definitions was the only score that was within the average range, with the exception of semantic relationships, which again at the lowest end of the average range. (T-205)
The witness also testified that they reviewed progress reports provided by the “[REDACTED]” school for the 2020 IEP. (Id.) She recalled the “[REDACTED]” staff saying that they had shifted to focus more on the student’s reading comprehension. (T-208) She does not recall what the representatives from “[REDACTED]” reported with respect to the student’s executive functioning skills. (T-209) She also does not recall them saying that the student needed a lot of support with functioning skills. (T-210)
The witness further testified that the Parents were present for the discussion of the goals at the meeting. (T-212) After testifying as to why the student’s goals were drafted, the witness stated that neither the Parents or the representatives from the “[REDACTED]” school object to any of the goals that were developed. (T-212-7) The recommendations were for a special class and a resource room for direct reading support, as well as speech-language therapy and counseling. (T-218) A resource room is for a student to receive additional support with a special education teacher or a reading interventionist, a reading specialist, which was recommended for the student in 2020 for him to access additional reading intervention. (T-220) The maximum number of students in a resource room would be five. (T-221) The committee had to reconvene at a later date because there was not an agreement regarding a special class for math, but everybody was in agreement with the recommendation for special class for ELA, science and social studies. (T-222) Everyone was in agreement with the resource room, the speech and language therapy and the counseling mandates. (Id.)
The witness testified that she also attend a CSE meeting to develop an IEP for the student’s 2021-2022 school year. (T-228) The private evaluation diagnosed the student as having ADHD, Autism spectrum disorder, specific learning disability in reading and a specific learning disability in written expression. (T-238) She recalls that at the meeting they talked a lot of about the student’s self-monitoring, self-awareness and self-advocacy, and the goals address that by eliminating obvious wrong answers, applying strategies eliminating answers, and advocating for himself to ask for help if the student felt an assignment was challenging. (T-245) When asked if she had an opinion on whether the programs and services in the IEP would enable the student to make meaningful progress for the 2021-22 school year, the witness responded as follows:
The special class programming would support him -- would provide him with access to specialized instruction in a smaller student to teacher ratio where he can access the curriculum in the ways outlined by the modifications that we recommended. The resource room program again was recommended to provide him an opportunity to receive remedial intervention in reading, which would directly correspond with the decoding goal that was recommended. The related services would support in the areas that were identified in [NAME]'s report, specifically [STUDENT INITIAL]'s social skills, social language, pragmatic language. Counseling would provide the support and the goals that I reviewed for social skills, self-awareness and self-advocacy. And you could see in the location speech-language therapy was recommended to be integrated to support him. Typically, when that's recommended it's to support the application of the skills to the student's natural environment. (T-249-50)
The witness testified that she believes there was a consensus on these recommendations. (T-250) At no point during the CSE meeting on May 5, 2021 or at any point prior to that meeting did she receive any information indicating that the student needed to be educated in a residential setting. (T-253) The student does not meet the criteria for placement in a residential setting. (T-254)
On cross examination, the witness testified that she is a state certified psychologist, but there is also an additional exam called a Praxis exam that you can take to achieve the additional certification of national certification that is maintained over the years with professional development and supervision. (T-256) Later she conceded that she does not know who does the national certification and her national certification has to be updated. (T-257) she has never met or worked with the student. (T-257-8)
The witness testified that she did not chair either of the two meetings she was asked about on direct examination. (T-258) After acknowledging that the student student’s evaluations at the IEP meeting were over three years old, the witness stated that in the absence of other more recent testing, you review what you have, and with regard to cognitive functioning, especially at the student’s age at the time of the meeting, cognitive functioning is not expected to fluctuate much unless there is a traumatic brain injury or some significant event that to consider, and that was not the case. (T-258-62) They did not use the student’s more recent private evaluation because, as she recalls, they did not have access to it at the August 2020 IEP meeting. (T-262-3)
The witness further testified that many things can contribute to a low average full scale IQ. (T-265) In her experience typically a six-point IQ difference is not a statistically significant difference. (T-266) She does not have direct knowledge of the conditions surrounding the examination of the 2017 IQ tests or WISC administrations. (T-267) However, she had access to the private evaluation report, where it indicated the conditions. (Id.) She does not recall ever having any direct conversations with anybody from the “[REDACTED]” outside of the CSE meeting. (T-268) She knows that “[REDACTED]” is a special education school with a primary focus on reading. (T-269) She has not reviewed the student’s class profile at the “[REDACTED]” school. (Id.)
The witness also testified that her training is comprised of being able to administer and/or interpret scores of reading evaluations and assessments, whether that be classroom assessments, curriculum-based assessments or nationally normed assessments of reading, and she has also been trained to oversee and/or implement evidence-based reading interventions. (T-270) She defined dyslexia as a specific learning disability that limits the student's ability to either decode or understand read print to the extent that it impacts their reading. (T-271) She has also engaged in a variety of different learning experiences where they research, identify, and review best practices and evidence-based interventions, as well as, updates in assessment protocol for the identification of characteristics of autism. (Id.) Prior to her work as a school psychologist she participated in a research setting, specifically looking at the effect of working memory and executive functioning training on the characteristics of ADHD. (T-272) ADHD can contribute to lower scores in working memory. (Id.)
Regarding the student’s the “Kaufman test” scores in the School District’s Exhibit “5”, the witness testified as follows:
Grade equivalent scores indicate how the student performs on -- it's a median score. It's not recommended that grade equivalent scores are used. They're not as psychometrically sound as standard scores, which is why I didn't refer to them in my testimony. The most accurate and psychometrically sound scores are the standard scores because they are based on a mean and even contribution of scores over time. And they can be compared reliably to prior or subsequent evaluations, which grade equivalent scores cannot. (T-273-4)
The witness further explained that according to the grade equivalent score the student performed below expectations of for the ninth grade, but the scores do not indicate his performance on ninth grade level material. (T-275) The reading goals on School District Exhibit “4” are not related to decoding. (T-282) To help close the gap in the student’s IEP the School District would use targeted specialized instruction, special class programming and reading intervention in resource room, which were aligned with the three reading goals that we developed. (T-284-5) Through the resource room multisensory intervention would be provided. (T-285) The Wilson program was being used at the time in the School District. (T-286) “Corrective Reading” is another multisensory evidence-based remedial reading intervention. (Id.) Corrective Reading, has been proven effective for students with dyslexia. (T-287) The witness testified that there was no disagreement with the student’s 2021-2022 IEP. (T-288) The student’s reading comprehension score of 92 at the 30th percentile would that be considered in the average range. (T-292)
The witness testified that it is best practice for a student to integrate with the general education population and general education peers, students who are not receiving special education services. (T-295) It is her understanding that the “[REDACTED]” school is a special education school, and that all students are receiving special education services, which means that the student was not integrated among the general education population at that school. (Id.)
On re-direct examination, the witness testified that she never received consent to conduct an evaluation of the student. (T-297) To her knowledge and in her experience a request to consent to evaluations is still sent to the Parents even if there are private evaluations that are occurring. (Id.) When asked: “Can you tell me what other things might contribute to a low average score on an evaluation?,” the witness responded as follows:
When looking at a series of scores, you have to review the validity and reliability of the scores, and that is typically indicated in the evaluation, behavioral observations. At times if a student exhibits behaviors that interfere with their ability to demonstrate their potential or interfere with the standardized conditions of the testing setting, there should be a notation in the evaluation that the scores, you know, should be interpreted with caution, or sometimes it's indicated that the scores are under or overrepresentations. There's some kind of a cautionary statement regarding validity and reliability of the scores. (T-298)
The witness testified that she believes that the test results reported by the private evaluator are accurate and represent the student’s performance. (T-300-1) The private evaluation indicates that there were noteworthy behaviors that influenced the student’s performance. (T-301-3) Even though the “Pearson” test produces a grade equivalent, Pearson says you should not rely on them for educational purposes. (T-304)
On re-cross examination, the witness testified that if the Parents had signed a consent to evaluate the student, it would have come to her. (T-305) The actual consent form would have been sent to their pupil personnel services office, but the assignment for the evaluation would have gone to her. (Id.)
The third witness for the School District is a Dyslexia and Literacy specialist who testified on direct examination via affidavit. (D-20) In sum, substance and relevant part, the witness testified as follows:
1. I am a Dyslexia and Literacy specialist. I currently deliver reading instruction to students of the [SCHOOL NAME] School District (hereinafter the "District") as independent consultant through a third-party service agreement with the District. I make this affidavit based upon my personal knowledge of the Student, as well as the information contained in the records of the District. With respect to any allegations alleged upon information and belief, I believe those statements to be true.
6. I currently hold New York State certifications in Elementary Education N-6, Special Education K-12 and Literacy Birth-6th.
7. l have reviewed the Amended Due Process complaint dated November 17, 2022. For the purposes of this affidavit. the term "Parents" refers to [Redacted]. and [Redacted], as the parents of student [Redacted]. The term "Student" refers to student [Redacted].
8. I have reviewed the [REDACTED] School Progress Report dated December 2019. The report indicates that the Student can attend to punctuation and read with inflection independently. It also indicates he is able to decode multisyllabic words and unfamiliar words with prompting and support. The progress report did not identify any need for direct instruction in decoding at that lime.
9. The [REDACTED] report from 2019 identifies the need for direct instruction in comprehension. Specifically, it recommends instruction in developing and defending opinions about a text and using text-based evidence to support responses. The 2019 [REDACTED] School Report Card does not identify a specific reading program or methodology being used with the Student.
10. The reading goals identified in the Individualized Education Program for the Student dated August 27, 2020 address the reading deficits identified in the [REDACTED] School Progress Report from December of 2019.
11. A neuropsychological evaluation report by [NAME], was conducted on 6/16/20. I have reviewed the comprehensive evaluation conducted by [NAME]. [NAME] reports that on the KTEA-3 the Student's Letter Word Recognition was a SS75 (5th percentile) and nonsense word decoding 55 81 (21st percentile). On the GORT-5 the Fluency Score was a Scaled Score of 6 (9th percentile).
12. I have reviewed the [REDACTED] School Student Progress Report from December 2020. The report indicates the Student needs prompting and support to attend to punctuation and to read with appropriate fluency and rate. He also needs adult support when summarizing text in both oral or written formats. The report card indicates the Student needs direct instruction to answer literal questions and "wh" questions.
13. The reading goal identified in the Individualized Education Program for the Student dated May 5, 2021 addressed the decoding deficits identified in [NAME]'s testing and the [REDACTED] 12/20 Progress Report.
14. On or about June 1, 2022, I conducted a reading evaluation of the Student. I administered the Feifer Assessment of Reading (FAR), which is a reading assessment relied upon by psychologists and reading specialists to assess the reading abilities of students, including students with reading deficits. The FAR is a comprehensive assessment of reading and related processes. The assessment measures phonological processing and decoding. fluency and comprehension skills. The scores provide information to guide instruction of weaknesses.
15. According to the assessment, the Student's reading skills were below grade level. On the Phonological Index, his score was a (76), which is the 5th percentile. The Student had difficulty blending and segmenting syllables. During the testing, he inserted words, substituted visually similar words, omitted suffixes, and incorrectly read words. According to the testing. his reading rate was very slow and he only read through half of the passage in the time allotted.
16. On the Isolated Word Reading subtest and Oral Reading Fluency subtest, he scored in the 4th and 5th percentiles, respectively.
17. My review of the testing indicated the student has a Rapid Naming Deficit that may impact his reading fluency. However, he scored solidly in the average range with a Standard Score of 100 (50th percentile) on the Silent Reading Fluency-Comprehension subtest. On this subtest, the Student is asked to read silently for 1 minute, show the examiner the last word read and then can continue reading silently for 5 more minutes before answering questions.
18. Additional time, enlarged print and use of audiobooks are accommodations that can be helpful for students with reading deficits including phonological and naming weaknesses. Both the 20-21 and the 21-22 lEP provided for this accommodation.
19. As part of the reading evaluation that I conducted, I reviewed the evaluation report completed by [NAME], dated June 16, 2020, as well as the [REDACTED] School Report cards. Based on my review of records, I noted that certain areas are still in need of remediation. According to the FAR Professional Manual, "The FAR's Isolated Word Reading Fluency, Oral Reading Fluency, and Irregular Word Reading Fluency subtests each correlated strongly with the GORT-5 Oral Reading Quotient.” The Student's 2022 FAR Isolated Word Reading Fluency (Standard Score 74, 4th percentile), Irregular Word Reading Fluency (Standard Score, 63, 1st percentile) and Oral Reading Fluency (Standard Score 75, 5th percentile) can be compared to [NAME]'s results on the June 2020, Oral Reading Index of the GORT-5 (Standard Score 86, 18th percentile). The Student's percentiles went down since June of 2020. Since these are fluency tests, they are all timed so RAN deficits can impact these scores.
20. The Student was tested using the FAR over 2 sessions. As stated in my report the student showed patterns of strength and weakness. According to the FAR Interpretive Report, the scores may suggest global reading delays. His Total Reading Index on the FAR, which combined the Phonological Index, Fluency Index and the Comprehension Index was a Standard Score of 79 which fell in the 8th percentile. A clearer picture of the student's strengths and weaknesses can be seen in his subtest scores along with other pertinent testing and information. (D-20)
On cross examination, the witness testified that she is a contractor with the school district whereby one of the tutors works for her and comes in four days a week, tutors students and she does reading evaluations, and also assist some of the teachers in the district with scientifically based reading instruction and to help them implement that, and trains them in the classroom. (T-316-7) She is trained but not certified in Orton-Gillingham. (T-317) She also has a certification with the International Dyslexia Association. (T-318) She was a teacher for twelve years, has a certification in special education and has done reading evaluations as a consultant. (T-320)
The witness testified that she really does not know much about the “[REDACTED]” school. (T-323) However, she has tested the student twice. (Id.) The student had below reading level scores. (T-324) After a series of nonsensical questioning essentially asking whether spelling and vocabulary were a part of reading, the witness stated that she typically puts the spelling goals under “writing.” (T-338) As for “vocabulary” goals, sometimes they are under speech and language goals, sometimes under speaking and listening goals, and sometimes they are under reading goals. (T-339) The Reading comprehension and reading goals on Exhibit 3 A, page 12 address the skill deficits identified by the “[REDACTED]” school as "Developing and defending opinions about the texts, for example, plot, theme, characters, actions." (T-345)
At this point in the cross examination, the undersigned confirmed that the “evaluation” was done in June of 2020 and the IEP was done August 27, 2020, with the annual review meeting being initially held on June 8, 2020, and then reconvened on August 27, 2020. (T-347-8) The Parents’ attorney could not answer the question, saying that he had to wait until his client testified, but the attorney for the school district proffered that is was the school district's contention that the “[Redacted].” evaluation was not available to the school district for either the June or the August 2020 meetings. (T-348-50) The date of the testing is June 16, 17, 18th and 19th, so the testing certainly occurred after the initial meeting. (T-350)
The witness further testified that the evaluation noted decoding deficits and there is a goal that is a multisyllabic word so that it encompasses basically all of the syllable types, and as such, it encompasses most of the decoding goals the student would have and addresses his decoding skills. (T-355) The decoding goal does not have anything to do with comprehension or decoding multisyllabic words. (T-357) “Rapid naming deficiency” is addressed through using fluency training, reading. (T-358) When the student read silently, his comprehension was in the 50th percentile. (T-360)
The witness agreed that a student who has global reading delays and deficits should have more than one goal in their IEP. (T-377) The goal in the May of 2021 IEP was based on the information that they had at the time and her testing was recent. (T-378)
On re-direct examination, the witness testified that the testing on Exhibit 5, page indicates a reading comprehension standard score of a 92, which “average” is the 30th percentile. (T-380-1) Also on Exhibit 5, page 27, under the section for the Gray Oral Reading Test a comprehension scaled score of nine, which in the 37th percentile, is also an average score. (T-381) A Silent Reading Fluency Comprehension Test in the 50th percentile is also an average score. (Id.) The witness testified that she teaches beyond the skills identified on the goals in the IEP. (T-383)
On re-cross examination, the witness testified that if there's a documented deficit it should be on the IEP. (T-385)
THE PARENT’S CASE
The Parent called (4) witnesses to testify on her behalf and submitted (11) documents into evidence. In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is as follows:
The Parents’ first witness is the student’s father. (T-397) He has a bachelor of science in business administration degree and is self-employed as a business consultant who also involved in a ‘startup.” (Id.) The student’s ambition is to go to higher education and become an engineer and then do a master in City Planning. (T-398)
The witness testified that the student has three diagnosis, pervasive developmental disorder not otherwise specified, autistic spectrum or high functioning ADHD and dyslexia. (T-399) At the meeting on August 27, 2020 they were not able to discuss everything in that meeting, so they had a follow up meeting. (T-400) They discussed goals, the profile of the kids and instructions by somebody who is trained in Orton-Gillingham or Wilson although they did not get a good answer to the latter question. (Id.) They did not have a draft copy of the IEP at that meeting or the meeting in June. (Id.) They believed it was inappropriate to put the student with kids that had severe intellectual disabilities because he needs to be in a class with peers of the same intellectual capability. (T-401)
The witness testified that the district did not indicate how much interaction or integration there would be with typical peers in this class. (T-401-2) His understanding was that the school district was two days in person and three days remote. (T-405) For the special need kids, they would have Monday, Tuesday, Thursday, Friday with Wednesday to be half day remote. (Id.) At the “[REDACTED]” school, instruction was in person, unless somebody got COVID. (T-406-7) Remote instruction was not good for the student. (T-407) To keep the student on track and he needs to be on a regular schedule and know what's happening. (T-408)
The witness testified that Orton-Gillingham and Wilson are the programs that are proven to work, from a scientific point of view, for dyslexic kids. (T-409) That was one of the reasons why they went with the “[REDACTED]” school because it has science-based programs and trained staff. (Id.) Later in the fall there was going to be speech and language testing of the student. (T-410-1) There are nondisabled peers at the [Redacted] school. (T-416) It also has Orton-Gillingham. (Id.) The “[REDACTED]” school was the right place because they took everything into account. (T-419) The student was placed in a boarding school. (T-422) They also sent their older son to boarding school. (T-422-3) The student attending a boarding school was not pre-determined but was done because he is hyper-active. (T-423-4)
On cross examination, the witness testified that it was his understanding that at the school district the student was a student with a disability assigned to the 12:1:1 class and that he would be attending school four days a week for the 2020-2021 school year. (T-429) He does not know whether there was a hybrid schedule or not for the 2021-2022 school year. (T-430)
The witness testified that he was not aware if the consent form was sent by the school district on December 20, 2019 but he knows there was a discussion about testing that [Redacted] had with “[REDACTED]” because he was copied on emails. (T-431) In December of 2019 and January of 2020 he believes that he was in Florida with “Redacted’s” parents, but he could have been in Sweden also. (T-432) He does not recall receiving a ”Prior Written Notice” with consent form (T-433) He does not recall if he signed something to allow for the student to be re-evaluated. (T-434)
The witness further testified that he was not aware that on or about March 10, 2020 the district sent another request for consent for an evaluation, and that this time it indicated that there would be a neuropsychological evaluation by a private evaluator to be provided by the Parent. (T-436) He does not know that the acronyms listed on Exhibits 17 & 18 stand for the profiles of the students in the proposed school district class for the 2021-2022 school year. (T-437-8) He does not know if the “[REDACTED]” school did testing within the protocols of the Orton-Gillingham program or Wilson program or just generic reading assessments. (T-439-40)
On re-direct examination, the witness testified that he does not know if the school district knew they were down in Florida, but “[REDACTED]” is very aware that the easiest way to get in touch with them is through email. (T-441) He assumed that if the school district agreed to the private evaluation, they would pay for it. (T-442-3) There was no re-cross examination of the witness. (T-444)
The Parents’ second witness is a NYS licensed psychologist who has a private neuropsychology practice in [Redacted] York. (P-J) In sum, substance and relevant part, the witness testified as follows:
2. I evaluated the student [Redacted] in both 2016 and 2020 conducting a full neuropsychological evaluation. I am aware that my 2020 evaluation, which is an accurate representation of the student's cognitive and educational profile is in evidence in this case as Exhibit 5. I swear to the accuracy of this report and it's included recommendations. The results of this report being in evidence do not need to be included in this affidavit but I will answer any questions regarding the report.
3. The student has diagnoses of Autism Spectrum Disorder Level 2, ADHD Combined Type, Dyslexia, and Specific Learning Disorder with impairment in Written Expression.
4. The student has intellectual abilities in the average range, and be has particular strengths in visual spatial reasoning, which fall within the above average range. His cognitive processing - working memory and processing speed - are significantly lower than his general conceptual abilities.
5. The 2020 evaluation also found that his reading comprehension skills are within normal limits despite his difficulty with decoding. It also found strong listening comprehension skills, which fell within the high average range. These results indicate that he is capable of understanding content and concepts that are more sophisticated than those he can independently decode.
6. I have thoroughly reviewed exhibits 17 and 18 from this hearing that the parents' attorney shared with me that are class profiles for the 2021-2022 and 2020-2021 school years for the proposed class the district intended to place the student in.
7. I am also familiar with the student's 2020-2021 and 2021-2022 IEPs that I am aware are in evidence in this hearing as exhibits 4 and 9.
9. He must be given remediation for phonetic and automaticity weaknesses, he must also have educational experiences that enable him to develop strong reading comprehension, mathematics, and content specific skills and knowledge.
10. The classmates in the proposed class profiles (exhibits 17 and 18) includes multiple children with IQs in the 70-75 range. Individuals with IQ in this range have significant limitations on their intellectual functioning. IQs in this range are significantly lower than the student's intellectual functioning as compared to his Full-Scale IQ and his General Abilities Index. It suggests that though they are all working to establish decoding fundamentals and reading fluency at the word level, there are probable differences in their reading comprehension skills and conceptual understanding.
14. Because the student is of average and above average intelligence, he is interested in and capable of understanding sophisticated topics. He should be with peers who are also capable of discussing and learning sophisticated topics. He needs exposure to both common academic words as well as low frequency and content specific words. He should also be exposed to readings, passages, and books that are at his comprehension level, not just his decoding level, to further build his reading comprehension skills. He needs classmates who can have discussions about texts that are at his comprehension level.
17. In 2020 be demonstrated improvements in his conversational skills. There was more back and forth conversation though he tended to direct it to his interests.
18. His reading skills improved between 2016 and 2020 particularly in the area of decoding. After three years he was reading accurately, though at an extremely slow pace. He struggled with multisyllabic, rule-breaking words. In 2016, his word reading and reading comprehension were at the first-grade level. In 2020, his word reading was at the 4th grade level and his reading comprehension was at the 7tb grade level.
19. The student has required intensive and individualized interventions that target his weaknesses throughout his schooling, such as 12:1:1 special classes for academic classes, resource room, speech and language therapy - both individual and small group – and counseling. His IEP includes academic goals for reading, writing, and mathematics as well as goals targeting his study skills, speech and language skills, and social-emotional behavioral skills.
20. Due to the student's weaknesses in multiple areas, he could not afford to miss instruction. We know that children's skills can decrease when they miss instruction, such as over summer breaks. As seen in his IEP for the 2020-2021 and bis 2021-2022 school years, he was not a candidate for hybrid schooling for the following reasons: (a) He requires direct instruction in skill building in reading and writing. (b) He requires direct instruction in study skills around attention, focus, self-regulation, and organization as well as utilizing academic strategies. (c) He required support to develop topic maintenance during conversations. (d) He required support and instruction in identifying and practicing ways to initiate and engage in social interactions, including "examining nonverbal and verbal cues to inform behavior, active listening, and tum-taking in conversation" (2020-2021 IEP) and “will demonstrate comprehension of nonverbal cues by listing at least two cues such as facial expression nuances tone of voice changes body stance nuances and or gestural cues that would be present for given a motion period" (2021-2022 IEP). (e) These important skills are part of his IEP and are not appropriately addressed online. They require real-world, in person instruction and interactions. Online school would not have provided the immediate feedback, support, and instruction that [STUDENT NAME] required. Hybrid school would have reduced his in-person services and educational experiences to two or three days a week or a half a day each day depending on the model used by [STUDENT NAME]'s local public school. (P-J)
On cross examination, the witness testified that she has never served as a school psychologist in a public-school setting but did teach as a substitute teacher. (T-46) She has never provided remedial reading instruction to a child. (Id.) She does not have any certification in or training in Orton-Gillingham practices or Wilson reading practices. (T-457) Neither has she served as a CSE chairperson responsible for developing IEPs for children with disabilities. (Id.) She does not know the teacher at the school district. (T-457-8)
The witness testified that she has not seen the student since 2020. (T-458) She has not seen any documents from the [Redacted] School at all pertaining to the student. (T-469) Most children in her experience require some sort of treatment and intervention in order to improve their executive functioning of the sort you see in attention deficit. (T-470)
On re-direct examination, the witness testified that over the ten years she has been testing children she has been to numerous CSE meetings where IEPs have been developed. (T-471) Typically, she does between (20) and (45) neuropsychological evaluations a year. (T-472) Generally she does them for parents privately but she has done a handful for school districts over the years. (T-473) There was no re-cross examination of the witness. (Id.)
The Parents’ third witness is a Certified Teacher in New York and [Redacted] as well as a Fellow of the Orton-Gillingham Academy. (P-L) In sum, substance and relevant part, the witness testified as follows:
2. I am currently the Director of Learning Support at the [Redacted] School, and the Director of the [Redacted] Teacher Training Institute based at “[Redacted].” In this role I oversee the learning support department at [Redacted] which includes approximately ½ the students at the school and provide professional development for our teachers and teach two classes of Orton-Gillingham Intensive.
3. Orton-Gillingham Intensive is a program of daily intensive language remediation, incorporating one class of 1:1 Orton-Gillingham instruction and a separate class of appropriate supplemental academic support delivered in a small group, Strategies II. The Orton-Gillingham tutorial is individualized and diagnostic and prescriptive and designed to build underlying reading and writing skills. Students with a wide range of skills or needs are supported in the OG Intensive, whether the need stems from significant reading delays or written expression that is not commensurate with verbal comprehension and intellectual aptitude etc. A battery of standardized and criterion-based assessments is administered at the beginning and end of the year to guide instruction and allow for progress monitoring. The supplemental Strategies II class offers small-group executive functioning support designed to improve and support students' overall achievement as they move toward increased academic independence. Students meet daily with a teacher in groups of no more than four, and focus on, among other things, organizational and academic skills, time management, metacognition, self-awareness, and emotional regulation.
4. I am familiar with [STUDENT NAME] who was a student at [Redacted] during the 2021-2022 school year. As the Director of [Redacted]'s Orton-Gillingham Intensive, I supervised the educator who worked directly with [STUDENT NAME]. I reviewed [STUDENT NAME]'s neuropsychological testing prior to his enrollment. I would see [STUDENT NAME] daily as he attended his classes, and I worked with him directly on a couple of occasions when his teacher attended a conference.
12. [Redacted] offers three tiers of Learning Support: [STUDENT NAME] was enrolled in our highest tier of support. He received a 1:1 intensive Orton-Gillingham language training. Orton-Gillingham is a diagnostic, prescriptive and multi-sensory approach that varies widely from individual to individual. [STUDENT NAME] worked with a highly trained Orton-Gillingham practitioner who administered standardized and criterion-based assessments to assess needs and gauge student progress. Additionally, [STUDENT NAME] was enrolled in a daily 4:1 Strategies 2 (Support) period which supported his executive functioning.
13. [STUDENT NAME] came to us with a history of multiple learning challenges including diagnoses of Attention Deficit Hyperactivity Disorder (combined type), Autism Spectrum Disorder, level 2, Specific Learning Disorder with impairment in reading (dyslexia), and Specific Learning Disorder with impairment in written expression. [STUDENT NAME]'s dyslexia stemmed from both phonological and rapid naming deficits, the combination of which is typically harder to remediate. [STUDENT NAME] had received intervention in his prior academic setting, and a recent evaluation had noted cognitive gains. Still, [STUDENT NAME]'s constellation of learning and social challenges were a concern as he entered high school with its expected increase in rigor.
14. [STUDENT NAME] enrolled in our Orton-Gillingham Intensive program, which is the highest level of support. This meant he had a daily 1:1 period devoted to remediation and skill building via the Orton-Gillingham approach. Standardized and criterion-based assessments were administered to gauge needs, guide instruction, and monitor for progress. Additionally, he had a 4:1 regular class period each day (Strategies 2) devoted to academic support of his mainstream classes, including support of executive functioning, and/or management of anxiety due to academic demands; this class was not a pull out, but rather a regular class.
15. [STUDENT NAME] was enrolled in Humanities- English 9, Orton-Gillingham Intensive, Strategies 2, Algebra I, Scientific Literacy, Health & Human Biology, and Humanities-History 9. He also took the electives: Lego and Theatre, 3D Art, and Robotics. He participated fully in our advising program. For sports, [STUDENT NAME] participated in Outdoor Adventure, and Recreational Skiing/Snowboarding. He also participated fully in our Community Service program.
16. [Redacted] addressed [STUDENT NAME]'s executive function deficits by regularly reviewing his responsibilities relating to academics and dorm in Strategies II. As the class size was limited to 4, there was ample opportunity to consider assignments, break them into manageable chunks, and make a plan for completion with teacher guidance. [STUDENT NAME] also regularly engaged in self -reflection regarding task initiation, perseverance, and completion. The goal was to build self-awareness and lead [STUDENT NAME] to greater independence. [STUDENT NAME]'s teacher also engaged him in discussion regarding his emotional regulation surrounding his experiences. His working memory was addressed because the small class size allows teachers to be diagnostic and prescriptive in their teaching, modulating the pace of instruction and amount of review. Such an approach lends itself to greater retention of material. Finally, our schedule is well suited for a wide range of learners, including those who need support with executive functioning or regulation of attention. Classes are (40) minutes in length, and breaks are built into the day. The schedule reverses order on Thursday and Friday so that classes which meet in the morning on Monday and Tuesday, meet in the afternoon at the end of the week. Wednesday provides a break in the routine with Community Service and Sports. Classes meet on Saturday morning, too, with a rotating schedule.
17. [STUDENT NAME] performed well during the 2021-2022 school year at [Redacted]. His fall, winter, and spring term reports reflect achievement and growth, both in the narrative descriptions provided by faculty and the grades assigned to [STUDENT NAME] based on his performance in classes. Pre and post standardized assessments reflect a pattern of growth, most significantly in the realm of silent reading where a student pulls all aspects of reading together to draw meaning from independent reading. [STUDENT NAME] progressed from the 16th percentile to the 31st percentile on the Comprehension subtest of the Gates MacGinitie Reading Test, a measure of silent reading. This test is composed of passages to read and multiple-choice questions to answer, and some of the responses call for inferences, which has been a vulnerability for [STUDENT NAME]. Other gains were noted in word attack skills as demonstrated on the Woodcock Reading Mastery Test. The decline in [STUDENT NAME]' s Word Identification score was likely a result of a conscious effort to slow down, an effort which was encouraged by [STUDENT NAME]'s teacher and noted in the fall term narrative report. Similarly, [STUDENT NAME]'s rate on the Gray Oral Reading Test slowed, again likely the result of a conscious effort to encourage accuracy over speed. The criterion-based measures which were administered in both the fall and spring reflect a pattern of strong growth in the areas of single word reading and sound-symbol identification. [STUDENT NAME] made dramatic gains on this measure in many areas. For example, he progressed from reading (40) percent of multisyllabic words in the fall, to reading (68) percent of multisyllabic words in the spring. He progressed from identifying (27) percent of vowel combinations in the fall to correctly identifying (76) percent of vowel combinations in the spring. [STUDENT NAME] also demonstrated gains in spelling on the Barnell Loft Diagnostic Spelling Test progressing from a grade equivalent of 3.8 to 5.5. Improvement in single word reading was also noted on the San Diego Quick Assessment of Reading; his independent reading of single words progressed two grade levels. (P-L)
On cross examination the witness testified that the typing of her affidavit was a collaborative process with the Parents’ attorney. (T-498) She relied on her personal knowledge of the [Redacted] school’s programming, her reading of academic reports and conversation with the student’s advisor. (T-499-500) She provides professional development, trains teachers in the Orton-Gillingham approach, oversees all of the supports, looks at reports that are written, reviews student performance and collaborates with teachers on ways best to support students. (T-501)
The witness testified that she did not teach or evaluate the student, but at the [Redacted] school it is the Director of Learning Support who testifies at the impartial hearings. (T-502) The student’s Orton-Gillingham level is not numerical, but instead, a very rich list of many phonemic and morphemic elements and writing elements and it sort of serves as a checklist which they highlight what is known and unknown and that they will cycle back to repeatedly, to see what's within reach and to be as ambitious as possible in their teaching. (T-505-6) She does not know if the student used the school’s supportive evening study hall. (T-506-7) At the end of the 2021-2022 school year the student was not recommended for a different level of support for the 2022-2023 school year. (T-509) The rest of the student’s classes were general education classes. (T-510) For the 2022-2023 school year the student is studying out of the country and she does know anything more about his school placement. (T-511)
The witness further testified that the student was in a regular class, not a pull-out class. (T-513) They are a college preparatory school, use teachers that have a fair amount of freedom in developing their curriculum, and do not follow strictly any state or federal standards. (T-515) She does not believe the student has a special education certificate. (T-517) She does not know whether any of the student’s teachers have public school certification but they are teaching mainstream courses at the [Redacted] school. (T-521) She does not know whether the student came to the [Redacted] school with any credits from the “[REDACTED]” school. (T-522)
On re-direct examination, the witness testified that she has been with the Kildonan organization since 2005, which was a school for dyslexic students founded in 1969, and part of that model was one-to-one Orton-Gillingham daily with a Teacher Training Institute that she still oversees and which is now centered on the [Redacted] school campus. (T-527)
On re-cross examination, the witness testified that over the year, the student’s single word reading on a criterion-based measure went up about two grade levels, and on the standardized measure, which would have been the Woodcock Reading Mastery, his word ID actually declined a little as they slowed him down so his word attack skills grew. (T-528) The Orton-Gillingham program at the [Redacted] school started slowly in 2019 and early 2020. (T-530) The [Redacted] school was a full “LD” school, but the [Redacted] school is a hybrid with a much more mainstream curriculum. (Id.)
The Parents’ fourth witness she the Director of Placement at “[REDACTED]” School in [Redacted]. (P-M) In sum, substance and relevant part, the witness testified as follows:
2. I have been employed by the “[REDACTED]” School since 2014. Prior to my role as Director of Placement, I was Director of the Foundations Program, a teacher, and assistant director or admissions and placement at “[REDACTED]”. I have a long-standing career in special education spanning three decades. Prior to joining “[REDACTED]”, I held positions as a teacher, educational consultant and executive director of a special education school.
5. I am familiar with [STUDENT NAME], having met him in 2016 when he first enrolled as a student at the “[REDACTED]” School.
18. [STUDENT NAME]'s schedule was as follows: (a) Tutorial: Each day [STUDENT NAME] attended a 40-minute tutorial class. The student/teacher ratio was 3:1. The main objective of this class is to provide intensive remedial instruction in the areas encompassed by the language arts. The tutor is responsible for the development of reading skills by offering instruction in decoding, and word analysis strategies using appropriately leveled reading material. In addition, emphasis is placed on developing reading comprehension, oral and written expression, spelling, vocabulary, and appropriate supplementary skills (e.g., spatial and temporal concepts, study skills). This 40-minute class met once a day. (b) Math: Each day [STUDENT NAME] attended a 40-minute math class. The student teacher ratio was 5: 1. The math class meets daily for 40 minutes and is designed to provide small group instruction in a structured program emphasizing concepts and operations, number sense, word problems, and the language of math. Units in practical applications of skills are also addressed. Individualization is provided to allow students to progress at their own rates. Teachers consistently spiral back, as necessary, over previously learned concepts to ensure retention of skills. (c) Writing: Each day, [STUDENT NAME] attended a 40-minute writing class. The student teacher ratio was 6:1. This class is designed to support composition in all classes. Teachers utilize a process writing approach to writing in which students complete pre-writing, writing and post-writing activities. Small class size enables each student to receive individualized writing instruction. (d) History: Each day [STUDENT NAME] attended a 40 -minute US History class. The student teacher ratio was 6:1. It is designed to provide valuable background information, concepts, and skills relating to history geography and civics. A multimodal approach is utilized incorporating textbooks, lectures and visual aids that match the needs and abilities of the students. (e) Literature: Each day, [STUDENT NAME] attended a 40-minute literature class. The ratio was 9:1. The main object of this class is to teach students that reading works of fiction is a pleasurable activity while also instructing and expanding vocabulary knowledge usage and retention, literary concept skills and reading comprehension. (f) Study Skills: Each day, [STUDENT NAME] attended a 40-minute study skills class. The student teacher ratio was 5: 1. The primary objective of the study skills class is to develop the skills necessary to complete work independently and efficiently. Hidden curriculum, time management, study strategies, notetaking, research techniques and public speaking form the basis of this structured curriculum. Each Friday, Lower and Upper School students, gather by division for an assembly. The assembly allows us to bring the groups together for special announcements and student and staff presentations. These assemblies build school spirit and help children see they are part of a larger community. A few times a year, we have assemblies for the entire student body. These assemblies took place via zoom during the 2020-21 school year due to the COVID-19 pandemic.
19. Progress is measured formally and informally throughout the year. “[REDACTED]” issues two comprehensive progress reports during the year. These reports are issued in December and June and I have reviewed them and am aware they are in evidence a Parents' exhibits D and E. (P-M)
On cross examination, the witness testified that she communicated with the Parents’ attorney regarding her affidavit and she provided a draft of her affidavit. (T-542-3) She referred to the student’s reports from June of 2021. (T-543) She was a part of the student’s admissions team to the school. (T-545) She is generally the person that testifies at impartial hearings for the “[REDACTED]” school. (T-546) They are a “K” through “8” school with an “upper” and “lower” but provide services in an ungraded fashion. (T-547) Students are roughly grouped by age, but also by functional levels and matched academically and socially. (T-548-9) Their classes are departmentalized much like most middle and high schools, which means they attend different classes for Math, English, Science, Social Studies and electives (T-550)
The witness testified that that all of the students that attend the “[REDACTED]” School have some type of language-based learning disability. (T-553) “Tutorial” at the school is not the dictionary definition of a tutorial, but instead it is reading instruction. (T-554) The school follows its own curriculum, but it is based on the [Redacted] state curriculum. (T-555)
The witness further testified that the “collaborative program” allows the speech and language pathologist to enter into a classroom to help the students to generalize the information that they're learning or their speech and language goals and objectives into a classroom setting rather than sitting in an isolated speech and language office somewhere and then having to transfer the skills. (T-563) All of the students at “[REDACTED]” have a language-based learning disability, but they do not all receive speech and language support services in the same fashion, as there are also pull-out services. (T-566)
There was no substantive testimony developed during the witness’ re-direct examination. (T-571-5) There was no re-cross examination of the witness. (T-575)
The fifth witness for the Parents was qualified on consent as an expert in speech pathology/language disorders. (T-591) She testified that her profession is about human communication, of which reading and writing are forms of communication that are just language comprehension done through print. (T-594) She is different from a reading specialist who is a teacher that has attained additional education and certification, like a master degree or sometimes just an additional certification in reading, and tend to work in general education, with students who are struggling readers, usually at the elementary level. (T-595)
The witness testified that she has never met the student but has known his family and consulted with them since 2018. (T-596) She reviewed the student’s records extensively but did not test student directly. (T-597) She does believe the student’s 2020-2021 IEP (Exhibit “4”) is appropriate to meet the student’s needs. (T-598) The main source of information she had is the evaluation report, which was done in June of 2020. (Id.) The evaluation found significant weaknesses in basic reading processes like decoding, automatic word recognition with reading fluency as a significant need. (T-599) The student also had very low scores in spelling and all aspects of writing. (Id.) Appropriate programming for the student would include interventions for those basic reading processes. (Id.)
The witness further testified that the goals in the reading section of the IEP did not address basic reading processes, at all. (T-600) The only goals for reading in that IEP addressed reading comprehension, which the evaluation in June of 2020 presented as a relative strength, and it was the basic reading processes of decoding, word identification, fluency that were significant areas of need. (Id.)
The witness also testified that the student’s 2021-2022 IEP was not appropriate to meet his needs. (T-602) Going into the 2021-2022 school year, there are no formal evaluations, just progress updates from the “[REDACTED]” school. (T-603) The student’s current teachers listed a number of needs that continued in the areas of basic word identification processes, decoding and reading comprehension. (Id.) The student also had needs in the area of writing pertaining to all aspects of gathering information for writing from texts, and spelling (T-604)
The witness testified that the student’s IEP had only one goal regarding reading. (Id.) There are two goals for writing. (T-607 & Exhibit “9”) There is no goal for spelling. (T-608) The IEP for the 2020-2021 school year addressed, in the area of reading, addressed only comprehension, and did not address basic reading skills, while the IEP for the 2021-2022 school year addressed only decoding and not reading comprehension, at all. (T-609) She strongly disagrees that you can compare FAR scores to GORT scores to determine progress because that is not how those tests are designed to operate. (T-615)
On cross examination, the witness testified that she has never worked in New York. (T-619) She is also not familiar with the differences between New York law and the federal IDEA statute. (Id.) She has not had any conversations for this hearing with people from the “[REDACTED]” or [Redacted] schools. (T-620) However, she was involved in a prior hearing for the student in 2018 and is familiar with his records from earlier school years. (T-624) She did not pay any particular attention to those records in preparation for this hearing. (Id.)
The witness agreed that things not identified in the IEP still get taught. (T-625) She acknowledges that both the FAR and GORT tests assess the same general skill area. (T-626-7)
On re-direct examination, the witness testified that her statements regarding the inappropriateness of the student’s IEPs were general regarding readers and readers with disabilities and programing appropriate for readers with disabilities, relating to IDEA, generally. (T-629) There was no re-cross examination of the witness. (Id.)
The Parent’s sixth and final witness is the student’s mother. (T-632) She testified that she taught preschool, from about 2004 through 2020. (Id.) The student has a main diagnosis of autism, ADHD, early on hypertonia and severe dyslexic. (T-635) The student was first removed from the school district in 2016, between 4th and 5th Grade. (T-636) The student was placed in the “[REDACTED]” school because it specifically deals with children with communication disorders, had a stellar reputation, only take children with average to above average intelligence and it seemed like a really good fit for him. (Id.)
The witness testified that they received the student’s IEP, in mid-March of 2020-2021 and therefore, did not have a placement to consider. (T-649) The student aged out of the “[REDACTED]” school for the 2021-2022 school year. (T-649-50) She did not return the student to the school district because the majority of its proposed class were children with intellectual disabilities. (T-650) The school district also talked about a literacy program for the student, but they did not have a provider chosen to administer that program. (Id.) They chose the [Redacted] school because it offered a very intensive daily program, with experts who had studied literacy for most of their careers and also offered remediation and support with executive function disorders, while being close to home. (T-652) They moved the student from the [Redacted] school because they could not afford to keep the student there. (T-653)
On cross examination, the witness testified that the prior written notice (D-2) that proposed consent for reevaluation and for consent, is December 20, 2019 and reflects their address at the time, [Redacted], New York 10533. (T-655) She did receive prior written notice. (Id.) She does not recall if she signed the consent to evaluate the student. (Id.) She does recall seeing a request for consent. (T-657) Later, she testified that she “believes” she signed a request for consent and sent it back to the district, either in December of 2019 or the one from January of 2020. (T-658-9) Later again, the witness testified that at some point she signed consent, because the district did reevaluate the student. (T-659)
The witness testified that she does not recall the representatives from the “[REDACTED]” School informing the CSE on June 8, 2020, that their work had shifted from decoding to comprehension. (T-670) She does recall the IEP goals for the 2020-2021 school year being discussed at every CSE meeting. (Id.) At the time of the student’s private evaluation, they had not made a decision to place the student at the “[REDACTED]” school. (T-683) She “believes” that they had provided a copy of the student’s private evaluation at the August 27, 2020 meeting. (T-685) She does not recall the specifics of the meeting. (Id.)
On re-direct examination, the witness testified that she has lived at 16 Westwood Lane in [Redacted] for (20) years. (T-707) They have not moved. (T-707-8) There was no re-cross examination of the witness. (T-714-5)
FINDINGS OF FACTS & DECISION
Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])
Under the IDEA, if a procedural violation is alleged, an administrative 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 parents' 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; [REDACTED] v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])
The IDEA directs that, 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. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)
The DOE may be required to reimburse parents for their expenditures for private educational 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The IDEA allows that 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." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) 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." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
2020-2021 School Year
I first consider whether the IEP meetings in this case were properly constituted under the law. Pursuant to the Regulations of the Commissioner of Education, Section 200.3 - Committee on Special Education:
(a) Each board of education or board of trustees shall appoint:
(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:
- the parents or persons in parental relationship to the student;
- not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment;
- not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student;
- a school psychologist;
- a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist;
- an individual who can interpret the instructional implications of evaluation results. Such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee;
- a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting;
- an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting;
- other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and
- if appropriate, the student.
The IEP dated August 27, 2020 for the student’s 2020-2021 school year indicates that the following individuals attended the meeting: the Chairperson, and Administrator, a School Psychologist, the student’s Father, the student’s Mother, a Special Education Teacher and a General Education Teacher. (D-4) This was a “reconvene” meeting that originally had been held on June 8, 2020. (D-19)
The record does not evidence that there was a “Parent Member” in attendance at the meetings. 8 NYCRR § 200.3(a)(1)(viii) states:
200.3 Committee on special education and committee on preschool special education.
(a) Each board of education or board of trustees shall appoint:
(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:
(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)
The Parents in this case are said to have “…prevailed against the district in a due process hearing regarding the 2015-2016, 2016-2017, and 2017-2018 school years. The IHO ordered the district to reimburse the parents for tuition at [SCHOOL NAME] for the 2016-2017 and 2017-2018 years. Thereafter the parents and the district settled all claims. We understand any claims for 2018-2019 and 2019-2020 are barred by the statute of limitations.” (DPC) Indeed, their testimony at hearing indicates that they did participate in the two relevant IEP meetings as experienced litigators in these matters.
As noted above, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if a procedural violation is alleged, an administrative 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 parents' 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; [REDACTED] v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]) Here, for the reasons stated above, I find that the school district’s failure to include a “Parent Member” does not amount to a denial of FAPE.
The student’s IEP meeting on May 5, 2021 for his 2012-2022 school year as attended by the Chairperson/Director of Pupil Personnel Services, the School Psychologist, the student’s Father, the student’s Mother, a Special Education Teacher, a General Education Teacher, a Speech/Language Therapist, two School Personnel members and the Asst. Dir. of Pupil Personnel Services. (D-9) Here again, I find that the student’s IEP team was properly constituted under the law.
As also noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09)
In general, a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation. (See 34 CFR 300.303[a][2], 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. (See 8 NYCRR 200.4[b][4] and 34 CFR 300.303[b][1]-[2] - emphasis added)
A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. (See 8 NYCRR 200.4[b][3]) Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. (See 20 U.S.C. § 1414[b][2][A], 34 CFR 300.304[b][1][ii] and Letter to Clarke, 48 IDELR 77 [OSEP 2007]) In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (See 20 U.S.C. § 1414[b][2][C], 34 CFR 300.304[b][3] and 8 NYCRR 200.4[b][6][x]) A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (See 20 U.S.C. § 1414[b][3][B], 34 CFR 300.304[c][4] and 8 NYCRR 200.4[b][6][vii]) An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified. (See 34 CFR 300.304[c][6] and 8 NYCRR 200.4[b][6][ix])
Outside of a “Draft IEP” dated August 27, 2020 and a “Teacher Report” of the same date, the IEP dated August 27, 2020 relied on a CASL-2 Test dated May 25, 2017, a CELF- 5 Test and a Test of Auditory Processing Skills-TAPS-3 of the same date, a Wechsler Individual Achievement Test III and a Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V) dated January 16, 2017, and a Wechsler Individual Achievement Test III dated September 9, 2016. (D-4)
It was determined at the hearing that the student’s private Neuropsychological Evaluation”, (D-5), was done in June of 2020 and the IEP was done August 27, 2020, with the annual review meeting being initially held on June 8, 2020, and then reconvened on August 27, 2020. (T-347-8) The Parents’ attorney could not answer the question, saying that he had to wait until his client testified, but the attorney for the school district proffered that is was the school district's contention that the private evaluation was not available to the school district for either the June or the August 2020 meetings. (T-348-50) The date of the testing is June 16, 17, 18th and 19th, so the testing certainly occurred after the initial meeting, but before the reconvened meeting. (T-350) The student’s mother testified that she “believes” that they provided a copy of the student’s private evaluation at the August 27, 2020 meeting. (T-685)
The Director of Pupil Personal Services for the School District testified as follows regarding the private evaluation:
12. On March 10, 2020, the District sent the Parents another Prior Written Notice requesting consent for a reevaluation. The revised consent contemplated that the Parent would provide a privately obtained neuropsychological evaluation and the District would conduct supplemental testing. The Prior Written Notice contemplates that the Parents were going to provide the private testing. I did not agree to pay for the private evaluation. The Parents did not return the signed consent for a reevaluation. (D-19)
The Director conceded that the school district reviewed the private evaluation at the May 5, 2021 IEP meeting. (Id.) But she also testified that she does not recall discussing the independent Neuropsychological Evaluation with the Parents, or if she offered the Parents one. (T-124) The CSE committee did not consider a neuropsychological evaluation for this student prior to the IEP meeting. (T-125-6)
The School Psychologist testified that for the May 5, 2021 IEP meeting, private evaluation diagnosed the student as having ADHD, Autism spectrum disorder, specific learning disability in reading and a specific learning disability in written expression. (T-238)
Was the private Neuropsychological Evaluation conducted in June 2020 available for the CSE team to review at the IEP meeting held on August 27, 2020? (D-4 & D-5) The cross examination of the school district’s Dyslexia & Literacy Specialist by Parents’ counsel revealed the following:
At this point in the cross examination, the undersigned confirmed that the “evaluation” was done in June of 2020 and the IEP was done August 27, 2020, with the annual review meeting being initially held on June 8, 2020, and then reconvened on August 27, 2020. (T-347-8) The Parents’ attorney could not answer the question, saying that he had to wait until his client testified, but the attorney for the school district proffered that is was the school district's contention that the “[Redacted]” evaluation was not available to the school district for either the June or the August 2020 meetings. (T-348-50) The date of the testing is June 16, 17, 18th and 19th, so the testing certainly occurred after the initial meeting. (T-350)
The Parents’ alleged failure to allow for school district to evaluate the student is not of the moment. Unless State law says otherwise, an LEA may use mediation and the due process hearing procedures to pursue an initial evaluation of a child when the parent refuses to consent or fails to respond to a request for consent. (34 C.F.R. § 300.300(a)(3). The use of mediation and the due process hearing procedures to pursue an initial evaluation when the parent refuses to consent or fails to respond to a request for consent is available in New York. 8 NYCRR § 200.5(b)[3]) Here, the record does not evidence the school district pursuing either mediation, or the filing of a DPC to secure an evaluation of the student. The fact that the requested evaluation in this case might not be characterized as an “initial” evaluation of the student, does not, in the opinion of the understanding vitiate the remedies that the school district could have pursued to secure an evaluation of the student.
The student’s mother testified that she “believes” that they had provided a copy of the student’s private evaluation at the August 27, 2020 meeting, but she does not recall the specifics of the meeting. (T-685) She also testified that she has lived at [Redacted] for (20) years and they have not moved. (T-707-8) Accordingly, I find that the Parents were properly given notice of the school district’s request for consent to evaluate the student. (D-2, D-3 & D-7)
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. (See 8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2])
Additionally, a CSE must consider independent educational evaluations obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. (See 34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]) However, consideration does not require substantive discussion. (See T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993] citing G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir.1988]; K.E. v. Indep. Sch. Dist. No 15, 2010 WL2132072, at *19 [D. Minn. May 24, 2010]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009])
The record does not establish that the school district had access to the student’s private Neuropsychological Evaluation dated June of 2020, at the IEP meeting held on August 27, 2020. However, there is ample evidence that the school district recognized that the student needed to have an evaluation conducted prior to that IEP meeting. As noted above, the school district has an affirmative duty to evaluate special education students at least once every three years. There was no evaluative material used at the August 27, 2020 meeting and “progress” reports do not qualify appropriate evaluative material.
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. (See 20 U.S.C. § 1414[b][2][A], 34 CFR 300.304[b][1][ii] and Letter to Clarke, 48 IDELR 77 [OSEP 2007])
In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (See 20 U.S.C. § 1414[b][2][C], 34 CFR 300.304[b][3] and 8 NYCRR 200.4[b][6][x]) A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (See 20 U.S.C. § 1414[b][3][B], 34 CFR 300.304[c][4] and 8 NYCRR 200.4[b][6][vii])
An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified. (See 34 CFR 300.304[c][6] and 8 NYCRR 200.4[b][6][ix])
As noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09)
Here, the school district recognized the student’s need to be evaluated. While the record indicates that the Parents’ cooperation in consenting to that evaluation is dubious at best. However, the school district did not pursue the remedies available to secure that cooperation or receive an order directing that the student be evaluated. In light of the school district’s affirmative duty in this regard (see above), I find that its breech of that duty, and the lack of appropriate evaluative material at the June 2020 and August 27, 2020 renders the resulting IEP deficient. Accordingly, I further find that the school district denied the student a FAPE for the 2020-2021 school year.
2021-2022 School Year
Turning to the student’s 2021-2022 school year, the relevant IEP is dated May 5, 2021. (T-48 & D-9) As noted above, I have already found that the CSE team was properly constituted under law for this meeting (Supra)
The student’s private Neuropsychological Evaluation was reviewed by the CSE team on May 5, 2021. (D-19 @ ¶ 28) The evaluation makes the following “summary and impressions”, as well as diagnosis and recommendations:
[STUDENT NAME] is a 14-year, 3-month-old adolescent who was last fully evaluated in 2017 and is due for his triennial assessment. [STUDENT NAME] is entering his final year at The [“[REDACTED]”] School and requires current information about his functioning to determine his academic and emotional needs for high school. [STUDENT NAME] was previously diagnosed with Autistic Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and a Specific Learning Disability in Reading. The current evaluation finds that [STUDENT NAME] continues to meet criteria for all three diagnoses. In addition, a diagnosis of Specific Learning Disorder with Impairment in Written Expression is also appropriate. The updated diagnosis is based on [STUDENT NAME]'s profile of strengths and weaknesses which are further explained below.
The academic and metacognitive gains noted in the 2018 evaluation have solidified and [STUDENT NAME] continues to evidence the understanding of what it takes to learn. He engages in the material presented to him and evidences effort and persistence. [STUDENT NAME] uses the strategies and tools taught to him as best he can.
Though [STUDENT NAME]'s reading and writing skills are below the level expected for a child his age, he has made noticeable progress in the past two years and has incorporated strategies for decoding and comprehension into his approach to reading. His specific skills will be reviewed below.
Diagnosis:
F84.0 Autism Spectrum Disorder, level 2, moderate
F90.2 Attention Deficit/Hyperactivity Disorder, combined type
F81.0 Specific Learning Disorder with impairment in reading (Dyslexia)
F81.81 Specific Learning Disorder with impairment in written expression
Recommendations:
Medical
1. [STUDENT NAME]'s family is encouraged to share the results of this evaluation with his pediatrician.
Educational
1. [STUDENT NAME]'s IEP should be continued with recommendations such as special education classes, a multisensory reading program, speech/language therapy, testing accommodations (including additional time, separate testing room, redirection, directions clarified, and assisted technologies), and occupational therapy and counseling.
2. Following his last year at The [“[REDACTED]”] School, [STUDENT NAME] will require a high school with an intensive, evidence-based program where reading and language are addressed as a central element of the curriculum of the school. Because small group learning has proven to be effective for [STUDENT NAME], his high school should provide small group learning.
3. [STUDENT NAME] requires direct instruction in decoding multisyllabic and rule breaking words. With better facility with these types of words, [STUDENT NAME]'s reading fluency should improve. [STUDENT NAME] should also practice reading fluency to improve his speed of reading.
4. [STUDENT NAME] should receive speech and language services to address his receptive, expressive, and higher-level language abilities. [STUDENT NAME] requires direct instruction in higher level language skills such as symbolism, inference, and identifying themes.
5. [STUDENT NAME] requires direct instruction in writing. His grammar skills need fortification and he requires instruction in how to generate content to fulfil the requirements of an assignment. He also needs further instruction in organizing his thoughts and ideas so that he can write paragraphs, essays, and papers with proper structure and that clearly communicate his knowledge and ideas. He should also be taught various pre-writing techniques, such as mapping, graphic organizers, and outlines, to help him plan his work and to improve his ability to write coherent and detailed paragraphs and essays. [STUDENT NAME] should be taught a variety of sentence types so that he can vary his sentence forms within a passage to make his writing more interesting. He should work with a dictionary or thesaurus to help him utilize a varied vocabulary. [STUDENT NAME] should learn how to effectively edit his work, checking for punctuation, capitalization, and grammar.
6. [STUDENT NAME] still depends on external structure and help for organization and metacognitive skills. Building his independence is an important goal. This should be achieved by helping him to recognize the tools and techniques he will need for any situation and evaluate if his problem-solving strategy is working. Helping [STUDENT NAME] organize his thoughts, generate content for writing assignments, and read at a deeper level to improve his ability to use inference, prediction, and identification of larger themes, are also important goals for [STUDENT NAME]. In addition, [STUDENT NAME] should learn to monitor his work to reduce careless mistakes and to ensure that he is on track to complete the assignment as assigned by his teachers. Finally, [STUDENT NAME] should learn how to effectively and appropriately advocate for himself.
7. [STUDENT NAME] must be taught metacognitive skills to help him learn problem solving strategies for approaching difficult problems. [STUDENT NAME] should learn to break down his approach into easy to remember steps and taught to evaluate if his approach is working. He should also learn to pause before responding to think about what he should be focusing upon and to ensure that he is answering the correct or whole question. Learning techniques such as underlining the question, repeating back what the question is asking, and checking off steps in problem solving will help [STUDENT NAME] develop self-monitoring skills and help him to focus on completing the assignment as directed.
8. [STUDENT NAME] should be allowed to complete writing assignments on a laptop or word processor due to his difficulty with handwriting and fine motor skills. He should experiment with note taking on a laptop as well.
9. [STUDENT NAME] should be taught to type efficiently via a typing program.
10. [STUDENT NAME] has difficulty accessing information that he has learned. He must be taught methods for improving his memory, specifically strategies for storage and retrieval, to help [STUDENT NAME] express what he has learned. Results of the evaluation found that [STUDENT NAME] needs repetition to help him learn new information. He does best when he is given information that is meaningful and within a context. He also benefits from information presented in manageable chunks in simple language. [STUDENT NAME] should learn several modalities for studying, including verbal, visual, auditory, and tactile. [STUDENT NAME] should be taught to use chunking, margin notes, outlines, and other methods of organizing information to help him learn and recall information.
11. [STUDENT NAME] best demonstrates his knowledge with structured and supportive assignments and evaluations. Prompts, multiple choice, and directed questions help him to access his knowledge better than free responses and essays.
Additional
1. To further build [STUDENT NAME]'s social skills, pragmatic language, and social problem solving, [STUDENT NAME] should participate in a teen social skills group. Dramatic Pragmatics in Rye Brook, NY offers groups for teens and may have an appropriate group for [STUDENT NAME].
2. [STUDENT NAME] would benefit from learning mindfulness and/or meditation to train him to think before he answers or starts an activity. Mindfulness and meditation will also teach him to notice when his mind has wandered and help him bring his attention back to the task at hand. [STUDENT NAME] can accomplish this through training with a meditation teacher or through regular practice with an app or audio track.
Home
1. Proper sleep and nutrition and regular exercise are extremely important components of mental health. [STUDENT NAME] should also participate in pleasurable and fun activities.
2. Following the COVID-19 crisis, [STUDENT NAME] should have regular social interactions with peers at home and on outings. If [STUDENT NAME] can manage non-structured and unsupervised dates, he should have them weekly. If they are hard for him, his family should create outings and events to give [STUDENT NAME] lots of opportunities to practice his social skills. These can be with school friends, neighborhood teens, family friends, or even clubs that fulfill [STUDENT NAME]'s interests.
3. [STUDENT NAME] and his family should play story-telling games, formal or informal, where [STUDENT NAME] and others are encouraged to tell stories with detail and plot. A fun alternative is to build the stories as a family with each member adding a detail or plot point. [STUDENT NAME] should be encouraged to follow a plot or train of thought to the end and to catch himself when he becomes tangential.
4. [STUDENT NAME]'s family should read stories and books together to increase [STUDENT NAME]'s enjoyment of reading and to allow him to develop his comprehension skills. An alternative would be for [STUDENT NAME] and his family to listen to audiobooks together. [STUDENT NAME] and his family should discuss the books they read, talking about the characters, plot, and what they think will happen. They can also talk about similarities and differences between happenings in the books and in [STUDENT NAME]'s life. These should be fun, creative conversations to build [STUDENT NAME]'s enjoyment and understanding of a narrative. (D-5)
The Director of Pupil Personnel Services for the school district testified that she thought the student’s private Neuropsychological Evaluation was an accurate evaluation. (T-85 & D-5) The school psychologist that testified for the school district also believes that the test results reported by the private evaluator are accurate and represent the student’s performance. (T-300-1)
The student’s May 5, 2021 IEP accurately and properly notes the student’s private evaluation’s diagnosis verbatim as follows:
Per results of a Neuropsychological Evaluation completed by [NAME], Psy D. (June 2020), [STUDENT NAME] meets diagnostic criteria for the following:
F84.0 Autism Spectrum Disorder, level 2, moderate
F90.2 Attention Deficit/Hyperactivity Disorder, combined type
F81.0 Specific Learning Disorder with impairment in reading {Dyslexia)
F81.81 Specific Learning Disorder with impairment in written expression
(D-5 & D-9)
As recommended by the student’s private Neuropsychological Evaluation, the May 5, 2021 IEP provides for the student to receive the following services: Supplemental Aids & Services, Assistive Technology, Supports for School Personnel, Testing Accommodations, Participate State/District Assessments, Special Class (Special Class ELA): 12:1:1, Special Class (Special Class Social Studies): 12:1:1, Special Class {Special Class Science): 12:1:1, Resource Room Program: 5:1, Special Class· Math: 12:1+1, Speech/Language Therapy: Small Group (5:1), Counseling: Small Group (5:1), Speech/Language Therapy and Counseling: Individual. (Id.)
The May 5, 2021 IEP does not per se recommend “occupational therapy” as does the Neuropsychological Evaluation, but it does say: “Twice a month, consultation with classroom teacher/student to provide opportunity for questions and concerns related to the Occupational Therapy scope of practice and to provide sensory strategies.” (Id.)
The Director of Pupil Personnel for the school district testified that the CSE team reviewed the student’s private evaluation and his December 2020 “[REDACTED]” school report card at the May 5, 2021 meeting. (D-19 @ ¶ 28) The school district Dyslexia & Literacy Specialist testified:
12. I have reviewed the [“[REDACTED]”] School Student Progress Report from December 2020. The report indicates the Student needs prompting and support to attend to punctuation and to read with appropriate fluency and rate. He also needs adult support when summarizing text in both oral or written formats. The report card indicates the Student needs direct instruction to answer literal questions and "wh" questions.
13. The reading goal identified in the Individualized Education Program for the Student dated May 5, 2021 addressed the decoding deficits identified in [NAME]'s testing and the [“[REDACTED]”] 12/20 Progress Report. (D-20)
The student’s May 5, 2021 IEP indicates that the student’s “[REDACTED]” school report card and progress reports are incorporated in its findings. Specifically, the IEP states:
School reports that [STUDENT NAME] has made gains this year in his academics. He enjoys history and engaging in conversation. He requires teacher prompts to stay on task and to engage in writing. [STUDENT NAME] has a tendency to get "stuck" at times and needs support to engage. [STUDENT NAME] works best when he can bring in background knowledge to his work and he feels more successful. Math is a relative strength for [STUDENT NAME] and even within that area he needs support from an organizational standpoint and to breakdown steps and word problems. Within reading, [STUDENT NAME] has shown improvement in decoding multisyllabic words and he has improved in his literal comprehension. [STUDENT NAME] has strong reasoning skills which supports his learning in the academic areas.
Based on updated testing and input from members of the committee, [STUDENT NAME] is recommended for Special Class 12:1:1 for ELA, Social Studies, Science and Math. In addition, [STUDENT NAME] is recommended for Resource Room daily and Reading support. Speech and language twice weekly in a group and once individually and counseling once weekly in a group was recommended. Parents were in agreement with goals and program modifications but not programming recommendations. (D-9)
The student’s May 5, 2021 thoroughly and comprehensively cites all of the student’s test scores. (Id.) The student’s “[REDACTED]” school progress report dated “Winter 2020” is thoroughly summarized in the IEP’s “ACADEMIC ACHIEVEMENT, FUNCTIONAL PERFORMANCE AND LEARNING CHARACTERISTICS.” (D-8 & D-9) In recognition of the information in the “[REDACTED]” school report and private evaluation, the IEP recommends the following “Management Needs” for the student:
To support [STUDENT NAME] in accessing instruction, he requires support with breaking down tasks in to manageable chunks and previewing of materials to increase his understanding. A copy of class notes should be provided to alleviate notetaking demands as well as visual cues for multi-sensory representation of information. He requires checks for understanding to ensure that he can restate directions and that he understands task expectations. He requires breaks for movement and access to sensory tools to support him with regulating sensory seeking behavior. Flexible seating options like a standing desk should also be provided to support [STUDENT NAME] in regulating high activity levels and increasing his attention to tasks. Access to technology supports like completing work on a word processor with speech-to-text software as well as text-to-speech options should be provided to support [STUDENT NAME]’s work output and comprehension of .information. Graphic organizers should be provided to support [STUDENT NAME] with organizing his writing. Counseling and Speech/Language Therapy related services are recommended to support [STUDENT NAME] in the development of self-regulation and socialization skills and pragmatic and expressive language. (D-9)
The student’s May 5, 2021 IEP has (3) goals for “study skills”, (1) for reading, (2) for writing, (2) for math, (4) for speech and (3) for social/emotional/behavior. The Speech Pathology Expert that testified for the Parent stated that the IEP was inappropriate, in part because it only has one goal regarding reading and no goals for spelling. (T-604-8) The IEP for the 2021-2022 school year addressed only decoding and not reading comprehension, at all. (T-609) However, she did not elaborate on why these services, or lack thereof were insufficient and conceded that things not identified on the IEP still get taught. (T-625) Even during re-direct examination by Parents’ counsel, the witness conceded that her statements regarding the inappropriateness of the student’s IEPs were general regarding readers and readers with disabilities and programing appropriate for readers with disabilities, relating to IDEA, generally. (T-629)
The student’s May 5, 2021 recommends a break down of tasks, refocusing and re-direction, visual cues, checks for understanding, directions clarified, frequent breaks, a modified curriculum, books on tape or other recording devices, modified written materials, preview of materials, graphic organizers, a copy of the class notes, preferential seating, sensory strategies, specialized software, access to a word processor and the occupational therapy consultations previous mentioned. (D-9) All of these modifications and accommodations address and incorporate the recommendations in the student’s private evaluation. (D-5)
As noted above, the May 5, 2021 CSE was properly composed under the law. (Supra) An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Supra) Here, the parties both agree that the student’s private Neuropsychological Evaluation accurately identifies the student’s strengths and weaknesses and that its recommendations are appropriate for the student’s 2021-2022 school year. (Id.) Finally, as evidenced above, the resulting IEP accurately reflects the student’s profile and adopts the recommendation made in the private Neuropsychological Evaluation. (Id.)
Again, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley and Cerra, Supra) An IEP is adequate as long as it is intended to provide “merely more than de minimis benefits.” Schools must provide a program that is “appropriately ambitious in light of the child’s circumstances. (See Endrew F v. Douglas County School District, 137 S. Ct. 988 [2017]) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, Tucker & Grim, Supra) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, Grim & Walczak, Supra)
For all of the reasons stated herein, I find that the school did offer the student a FAPE for the 2021-2022 school year.
Appropriateness of the Student’s 2020-2021 Private School
To prevail on the question of the student’s appropriate placement at the “[REDACTED]” school for the 2020-2021 school year. Here, the Parents need only demonstrate that the private placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
For the 2020-2021 school year, the student attended the “[REDACTED]” school. The Director of Placement at the “[REDACTED]” school testified that at the school, the student attended a 40-minute tutorial class, with a student/teacher ratio was 3:1 and received intensive remedial instruction in the areas encompassed by the language arts. (P-M) Emphasis was placed on developing reading comprehension, oral and written expression, spelling, vocabulary, and appropriate supplementary skills (e.g., spatial and temporal concepts, study skills). (Id.) The student had a daily 40-minute math class with a 5:1 ratio that emphasized concepts and operations, number sense, word problems, and the language of math. (Id.) For writing the student attended a daily 40-minute writing class with a 6:1 ratio which enabled him to receive individualized writing instruction. (Id.) For history he also attended a daily 40-minute class with a 6:1 ratio using a multimodal approach that incorporated textbooks, lectures and visual aids that match the needs and abilities of the student. Literature was also a daily 40-minute literature class but with a 9:1 ratio, “study skills was also a daily 40-minute study skills class with a 5: 1 ratio. On Fridays, the assembly brought the upper and lower student groups together for special announcements and student and staff presentations. (Id.)
The Director of Placement also testified that the school’s “collaborative program” allowed the speech and language pathologist to enter into a classroom to help the students to generalize the information that they're learning or their speech and language goals and objectives into a classroom setting rather than sitting in an isolated speech and language office. (T-563)
The student’s mother testified that he was placed in the “[REDACTED]” school because it specifically deals with children with communication disorders, had a stellar reputation, only takes children with average to above average intelligence and it seemed like a really good fit for the student. (T-636) The student was only moved from the “[REDACTED]” school because he “aged out” for the 2021-2022 school year. (T-649-50)
The Director of Pupil Personnel for the school district testified that in her opinion the “[REDACTED]” school was too restrictive for the student where students are generally placed in class with 4-6 students which the student did not need. (D-19 @ ¶ 38) While parents are not held as strictly to the standard of placement in the “least restrictive environment” (“LRE”) as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. (See Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 and M.S. v. Bd. of Educ., 231 F.3d at 105) The requirement of instruction in the LRE must be balanced against the requirement that each student with a disability receive an appropriate education. (See Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]) However, in the opinion of the undersigned, beyond the Director’s testimony, the school district did not develop any substantive evidence strong enough to find that the private school was not an appropriate placement for the student’s 2020-2021 school year.
Indeed, the law does not require that the Parents’ placement be perfect, it only requires that the Parents’ placement be appropriate. (See 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”)
When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) The often-cited language from the Endrew F. case, citing the 10th Circuit’s long standing case law that an IEP is adequate as long as it is intended to provide “merely more than de minimis” benefits, replaced by the United States Supreme Court with a tougher standard that requires schools to provide a program that is ”appropriately ambitious in light of the child’s circumstances”, applies to school district’s, not to Parents and does not require public schools themselves to give children with disabilities an opportunity to (among other things) “achieve academic success” and “attain self-sufficiency. (See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 [2017]) Certainly, a higher standard is not required to adjudge the appropriateness of the Parents’ unilateral placement.
The “reasonableness” standard to adjudge the appropriateness of the Parent’s unilateral placement is well below the other established standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence” and “substantial evidence.” It is perhaps equivalent to the “rational basis” standard of review. The Endrew F decision of the United States Supreme Court requires that requires a student receive an IEP that provide more than a de minimis benefits, applies to the school districts, not the Parents. I find that the record supports a finding that the “[REDACTED]” school met the ”reasonable” standard for a finding that it was an appropriate placement for the student’s 2020-2021 school year.
There is evidence in the record to question the extent of the Parents’ cooperation with the school district. (Supra) However, the school district’s affirmative duty to have had the student evaluated for his 2020-2021 IEP meeting, and its failure to pursue the remedies available to it to secure consent to evaluate the student, vitiates an equitable basis to deny the Parents’ claim for tuition reimbursement for the student’s 2020-2021 school year at the “E,H.” school. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent.
Parent’s Request for Payment of Private Neuropsychological Evaluation
The applicable federal regulation provides in material part as follows: (b) Parent right to evaluation at public expense:
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.
(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either
(i) Initiate a hearing under Sec. 300.507 to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under Sec. 300.507 that the evaluation obtained by the parent did not meet agency criteria.
(3) If the public agency initiates a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent education evaluation, but not at public expense.
(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation. (See 34 C.F.R. § 300.502[b] & 8 NYCRR 200.5[g])
Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.
Here, the is no evidence in the record that the Parent specifically requested that the student be evaluated by the school district, but instead, there is evidence that the Parents did not cooperate with the school district’s request to secure consent to evaluate the student. (See 8 NYCRR § 200.5(g)(iv), Supra) Equitable considerations are relevant to fashioning relief under the IDEA. (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).
Parents always have a right to obtain an IEE at their own expense, but publicly funded IEEs are subject to limitations. Parents forfeit their rights to an IEE at public expense where they wait too long to request an IEE from the district. (See, e.g., Student with a Disability, 113 LRP 52623 (SEA NY Nov. 2013) (denying request for multiple IEEs because parent failed to object to district’s reevaluation until an impartial hearing), see also Bryan County Sch. Dist., 113 LRP 4536 (SEA GA 2013) (applying the two year statute of limitations set forth in 34 CFR 300.507 (a)(2) to deny request for publicly-funded IEEs since parents filed a DPC 26 months after the district completed its evaluations) The Second Circuit has recently opined as to the appropriate timeline for a request for reimbursement for an IEE:
“A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent’s right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent’s right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii) Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child’s next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent’s disagreement will be rendered irrelevant by the subsequent evaluation.” (See D.S. v. Trumbull Bd. of Ed. 2020 WL 5552035, at pp. (2d Circuit, September 17, 2020).
Here, there is no evidence that the Parents disagreed with the school district’s evaluation. Instead, as noted above, the evidence suggest that the Parents did not cooperate with the school district to allow it to even conduct an evaluation.
The SRO has recognized that there exists a distinction between the procedures for obtaining an IEE at public expense (subject to the conditions outlined above) versus a request for reimbursement of a privately obtained evaluation as equitable relief for the district’s alleged failure to reevaluate the student. (See SRO No. 20-049, May 26, 2020) Where parents have failed to avail themselves of the appropriate procedure for an IEE and there exist no “extraordinary circumstances” to justify reimbursement for an IEE on the equities alone, the SRO has affirmed an IHO’s denial of reimbursement for same. (See SRO No. 20-117, October 5, 2020 - “Having not made such a request [for an IEE] and having then decided to have a private neuropsychological evaluation conducted in August 2018 while the district was in the process of completing a reevaluation of the student” the parent was not entitled to the equitable remedy of reimbursement. It ‘would bypass the evaluation process’ which the Second Circuit ‘cautioned against’ in D.S., 2020 WL 5552035.”)
The precedent in SRO No. 20-049, outlines the requirement of “extraordinary circumstances” to recover such costs on an equitable basis. However, even more recently, in SRO No. 20-147, the SRO determined, with regards to a claim for reimbursement for a private neuro-psychological, that, while the parent was not entitled to reimbursement for the evaluation through the statutory framework, equitable considerations warranted reimbursement for the evaluation. In support of this finding, the SRO noted that the record in that case demonstrated that the DOE had not evaluated the student since 2015, and that such a prolonged failure on the part of the DOE to evaluate the student does rise to the level of extraordinary circumstances sufficient to justify awarding the cost of a privately obtained IEE.
Here, the school district knew the student needed to be evaluated for the 2020-2021 school year, made numerous efforts to secure the Parents’ consent to evaluate the student. Had the school district used the remedies in the law to at least attempt to secure consent to evaluate the student, i.e., mediation and the due process hearing procedures, there would be a basis to deny the Parents’ request for payment of the private Neuropsychological Evaluation. (See 34 C.F.R. § 300.300(a)(3) & 8 NYCRR § 200.5(b)[3]) Absent the same, I find that the “extraordinary circumstances” standard referenced above supports the Parents’ request for payment of the private evaluation.
For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement cost, expenses and transportation for the student’s placement at the “[REDACTED]” school for the 2020-2021 school year in the amount of $70,110 (See DPC). The Parents’ request for tuition reimbursement at the [Redacted] school for the 2021-2022 school year is denied. The school district shall also pay the cost of the student’s independent, private Neuropsychological Evaluation, the cost of which shall not exceed the fair and reasonable market rate cost for such an evaluation in [Redacted], New York.
NOW therefore, it is hereby
ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the school district shall reimburse the Parents for the tuition, cost, expenses and transportation of the student as the result of his placement at the “[REDACTED]” school for the 2020-2021 school year in the amount not to exceed $70,110 (See DPC); and it is further
ORDERED that the Parents’ request for tuition reimbursement at the [Redacted] school for the 2021-2022 school year is denied; and it is further
ORDERED that the school district shall also pay the cost of the student’s independent, private Neuropsychological Evaluation, the cost of which shall not exceed the fair and reasonable market rate cost for such an evaluation in [Redacted], New York; and it is further
ORDERED that the Parents shall provide written consent to the school district to have the student re-evaluated for the 2024-2025 school year and that the school district shall conduct a re-evaluation of the student in all areas of his suspected disabilities, not evaluated within the last two years, for the 2024-2025 school year; and it is further
ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2024-2025 school year; and it is further
ORDERED that any of the other relief sought by the Parents not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: October 27, 2023
New York, New York
Edgar De Leon
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. (Rev. 07/09/20)