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CASE NUMBER: 590665 - NYC: 241575
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent(s)”)
Request Date/Date Complaint Filed: November 3, 2022
Date(s) of Hearing: March 6, 2023 and March 27, 2023
Actual Record Closed Date: April 20, 2023
Date of Decision: May 4, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 6, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 27, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], Head of School
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated November 3, 2022. (Ex. P-A) [2]. The record does not contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on November 10, 2022. A pre-hearing conference was held on December 5, 2022. Status conferences were held on January 3, 2023 and February 1, 2023 while the parents waited for the District to conduct an investigation of the case. When no resolution was forthcoming, the hearing was scheduled for March 6, 2023 and continued on March 27, 2023. [REDACTED] appeared on behalf of the District. [REDACTED] appeared for the Parents on March 6, 2023. [REDACTED] appeared for the Parents on March 27, 2023.
Four extensions of the compliance date were granted at the request of the Parents to enable time to negotiate a settlement, ensure witnesses were available and submit closing briefs [3]. The Parents entered into evidence exhibits A-M. 4 Two witnesses testified on behalf of the Student, including the Student’s mother. The District did not enter any evidence into the record. The Parents submitted a closing brief on April 20, 2023. The District did not submit a brief. The record was closed on April 20, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. The DPC also alleges violations under Section 504 of the Rehabilitation Act of 1973 (Ex. P-A-8). Parents’ counsel confirmed that there was no distinct Section 504 claim being raised (T:68-69).
BACKGROUND
The Student was [REDACTED] years old at the time of the DPC. She was classified by the District’s Committee on Special Education (“CSE”) as a student with a speech or language impairment. According to the DPC, a CSE meeting was held on January [4], 2022 to develop an Individualized Education Program (“IEP”) and recommended special education teacher support services (“SETSS”) 2 x per week for math and 3 x per week for ELA, along with related services. The Parents rejected the IEP and unilaterally placed the Student at the [REDACTED] (hereinafter referred to as “the private school”). The IEP is not in the record.
ISSUES
The Parents raise in the DPC numerous procedural and substantive challenges to the IEP including:
• The IEP is not appropriate and not reasonably calculated to confer educational benefit and would lead to regression, not progress.
• The CSE did not include a regular education teacher.
• The IEP does not reference any testing or evaluations completed within the last 3 years and no mandated triennial evaluation has been conducted.
• No vocational assessment has been conducted and the coordinated set of transition activities on the IEP, post-secondary goals and transition plan and services are not appropriate.
• The annual goals are generic and vague and do not reflect the Student’s needs.
• The IEP lacks meaningful social/emotional management needs.
• The CSE failed to consider assistive technology (“AT”).
• The proposed program of SETTS 2 x per week in math and 3 x per week in ELA is insufficient and does not provide any support for social studies, science and non-core subjects.
• The Student’s management needs cannot be supported in a SETSS classroom and she requires a smaller classroom.
• The CSE impermissibly predetermined the program, the parents were denied meaningful participation and the CSE did not consider the full continuum.
• The proposed location was inappropriate because it did not have room for the Student, and she would have had to receive her ELA SETSS before the school day.
• Given the Student’s needs, the public school building was too large.
The Parents seek as a proposed resolution funding for the Student’s 2022-23 placement at the private school.
There is no evidence in the record of a response by the District to the DPC. The District advised on the first day of hearing that it did not intend to present a case (T:26-27).
FINDINGS OF FACT
The Parent described the Student as a very happy and polite child. She is hard-working, cares about her school work, enjoys her phone and social media and being with her friends. She is meticulous with her school work, and everything is on time, neat and thorough. She enjoys all her classes and does very well (T:70).
The Student was in Early Intervention in pre-k and was then mainstreamed in Catholic School (T:70). The Student attended [REDACTED] for kindergarten through 6th grade. According to her mother, the Student began exhibiting difficulties with reading (making inferences), math (word problems) and executive functioning skills. The Parents referred her to the District’s CSE, and she was classified with a speech or language impairment and provided with an IEP. The Student was evaluated by [REDACTED] in the Spring of 2017 and diagnosed with a social pragmatic communication disorder (Ex. P-K-7). That evaluation was shared with the District (T:71). For seventh grade, she began attending the private school (Ex. P-L-3).
The most recent IEP was developed at a meeting in January of 2022, but the Parents never received a copy (T:71). The Parent advised the CSE she was concerned about a recommendation for placement in a regular classroom with 30 students and SETSS (T:72-73). She was also concerned for the Student to begin in a public high school, because the Student had not taken any of the Regent’s exams required for graduation (T:74-75).
In June and August of 2022, the Student was evaluated by the [REDACTED] after the Parents learned of a study from the private school (Ex. P-L-2).[5] The evaluation report is dated September 13, 2022. Her full-scale IQ was 91 placing her in the average range of intelligence, consistent with previous cognitive testing conducted by the District. Her verbal comprehension, perceptual reasoning, and processing speed indexes also fell in the average range. Her working memory index is 83 which is in the low average range (Ex. P-L-10-11). Her cognitive profile suggests average intellectual functioning with a personal weakness in her working memory/executive functioning (Ex. P-L-19).
In the September 13, 2022 report, all of her academic achievement scores were in the average to high average range. Her academic achievement scores reflect average functioning in word reading, pseudoword decoding, reading comprehension, total word reading efficiency, sight word efficiency, phonemic decoding efficiency, numerical operations, problem solving and math fluency for addition. Her spelling, math fluency for subtraction and math fluency for multiplication were in the high average range (Ex. P-L-32).
With regard to her language, the report’s narrative stated she exhibited average comprehension of vocabulary and extended discourse.[6] She missed the criterion cut-off on the CELF-5 screener of basic language skills by one point. She scored in the average range on phonological memory and variable rapid naming skills. She performed in the low average range overall on measures of phonological awareness. Given her inconsistent performance, further evaluation of her language skills was recommended (Ex. P-L-18).
On the Child Behavior Checklists, all responses of both the Parent and the Student regarding her emotional, behavioral and social functioning were within normal limits (Ex. P-L15). On questionnaires to assess the prevalence of attention deficit hyperactivity and related symptoms, all results were within normal limits (Ex. P-L-16). On two of the three standardized questionnaires utilized to measure the presence of symptoms of autism, the results were within normal limits. On the final questionnaire, the parent reported an elevated rating on a subscale of social communication (Ex. P-L-16-17). On a mood and feelings questionnaire, both the Student’s and Parent’s scores were within normal limits. On a screening for childhood anxiety related disorders, the Parent’s scores were within normal limits, and the Student reported some separation anxiety (Ex. P-L-17). The evaluators diagnosed the Student with Social Anxiety Disorder “given the reported level of impairment and distress in a wide range of social and performance situations”. The evaluators also diagnosed her with a social pragmatic communication disorder, by history and recommended to rule out autism spectrum disorder (Ex. P-L-20).
With regard to educational placement, the evaluators recommended “continued full-time placement in a highly structured special education classroom, where she can receive intensive and individualized support in a setting with a small student-to-teacher ratio. Her teachers should be experienced with children who have specialized learning needs, including individualized development of executive (sic). It is crucial that her placement have social emotional support integrated throughout her education. In addition, due to her cognitive potential, she requires intellectual and academic stimulation and should therefore be placed in a classroom with a cognitively similar peer group.” (Ex. P-L-20-21).
[REDACTED] (hereinafter referred to as “the Head of School”) submitted his direct testimony via affidavit (Exhibit P-M). He testified that he has worked at the private school for 31 years. He has held his current position since July 1, 2020. Prior, he was the Assistant Head of School for 5 years, Dean for 12 years and a literature and writing teacher for 20 years. He holds a master’s degree in learning disorders (Ex. P-M-1). He described the private school as having a student body of 220 students in grades 4 through 12, who have learning differences such as dyslexia, non-verbal learning disabilities and executive functioning difficulties (Ex. P-M-2).
The Student has attended the private school since September of 2017. The Head of School testified that he observes her class once a week. The Student’s educational needs and deficits include attention and focusing, executive functioning deficits, math, flexibility, social pragmatics and writing. There are 12 eleventh and twelfth grade students in her classes for literature/writing, science, history and math with one head teacher (Ex. P-M-4) [7]. All the students struggle with executive functioning, written expression, social pragmatics and academic problem solving. These weaknesses, including the Student’s weaknesses in decoding are addressed within the curriculum of each class (Ex. P-M-5). All students at the private school have special education disabilities, and although the students have varying degrees of disabilities, she has no exposure to regular education peers during the school day (T:64-65)
The Head of School testified that the Student requires the small classroom setting to address her attentional issues, as well as the opportunity to receive small group instruction. He testified the classroom utilizes repetition, slower paced instruction and visual components in light of her delays in processing speed.[8] The Student’s goals address strengthening executive functioning skills, reading comprehension skills, developing stronger written expression and building academic problem-solving skills. He testified these goals are reviewed in her winter progress report. (Ex. P-M-5-6) [9]. The Head of School described the specific goals addressed in each class (Ex. P-M-6-9). He stated that she has benefitted from the small language-based learning environment, systematic approach to addressing academic and executive functioning deficits, daily one-to-one Focus sessions and close integration of her teachers (Ex. P-M-10). She is expected to graduate in May or June of this year (T:52).
The Student’s schedule is in evidence as Exhibit P-I. The Student’s schedule reverses every other day (T:49). According to the schedule she is enrolled in the following subjects: chemistry, math, physical education, music/art, literature, writing, history and Focus (Exhibit PI). Her fall report stated that her math class is geometry and her math goals are related to learning geometry content (Ex. P-F-6). The Head of School’s testimony inconsistently states that her math class focuses on the development and reinforcement of foundation math concepts and that her goals relate to demonstrating accuracy in math facts and solving word problems (Ex. P-M6). He later states that the Student has “done well on many of his assessments, has demonstrated an understanding for many topics such as memorizing basic math facts.” (Ex. PM-9). [10]
When asked by the IHO why the Student is appropriately placed at the private school, given her average to high average achievement scores in reading, writing, math, listening comprehension, receptive vocabulary and oral discourse comprehension, he cited to her low verbal comprehension scores affecting her social pragmatics and expressive-receptive language skills as areas of weakness where she needs support (T:60-61). He testified that visual-spatial reasoning is lower average resulting in difficulty with part-whole relationships and inferential reasoning skills (T:62). The neuropsychological, however, measured her reading comprehension score assessing literal and inferential text comprehension skills to be in the average range (Ex. P-L-14). He testified that her blending word range is in the 9th percentile and rapid symbolic naming is in the 21st percentile which would affect her reading fluency and processing of language and text (T:66). However, her reading fluency scores were in the average range (Ex. P-L-14). He testified that her low working memory score in the 13th percentile profoundly affects her ability to manipulate information, affecting her executive functioning (T:67-68).
The Parent testified that the Student’s response to the private school has been amazing. She is about to graduate with a 3.7 average and has been accepted to 8 colleges. She also has a very vibrant social life. The teachers address the way she needs to learn (T:76-77). Her Focus class has spent a lot of time on social aspects, such as maintaining conversations, perspective taking and has fostered her ability to make friends and maintain friendships within the school (T:79). She receives a weekly update from the Focus teacher. She testified that she has cooperated with the District and responded to notices and requests in a timely fashion (T:80).
On February 17, 2022, the Parents entered into a contract with the private school for the 2022-23 school year (Ex. P-C). The Parents have paid all the tuition owed to the private school for the 2022-23 school year (T:82, Ex. P-D).
CONCLUSIONS OF LAW
The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”) (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parents in order to meet their burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“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.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65). Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The District does not dispute that it failed to offer the Student a FAPE for the 2022-23 school year and did not enter into evidence an IEP for the Student. Based upon the District’s failure to present any defense of its 2022-23 IEP and/or a description as to how it would meet the Student’s special education needs, I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test. Given the District’s admitted failure to meet its burden, I do not find it necessary to consider all of the specific challenges to the IEP raised in the DPC.
The next inquiry is whether under Prong II of the Burlington/Carter test the private school is appropriate or proper. The only witness who testified from the private school was the Head of School. He does not teach the Student or provide any services to her. In reviewing both his affidavit and live testimony, I find the Head of School’s testimony to be inconsistent and unreliable. In reviewing his affidavit, it is hard to believe that he assisted in its preparation or even reviewed it prior to signature. There are 23 instances where misgendered pronouns are used in referring to the Student (Ex. P-M-4-9). Where a couple typos would be acceptable, 23 instances clearly questions whether the entirety of this affidavit was meant for this particular student. For example, paragraph 17 states:
“We determined that [the private school] would be able to provide [the Student] a program that could support him (sic) in areas of deficit and provide him (sic) appropriate instruction and an environment that would allow him (sic) to make academic growth. An overview of his (sic) program is shown in ” (Ex. P-M-4).
The Head of School had no cogent explanation for the repeated inaccuracies (T:63-64).
In an example of a factually inconsistent statement in the affidavit, paragraph 30 states that “[r]repetition and a slower pacing of instruction is used in light of the students’ delays in processing speed…” (Ex. P-M-5). The September 13, 2022, evaluation report states that her processing speed is average (Ex. P-L-11,31). In prior cognitive testing, her processing speed was actually determined to be high average (Ex. P-L-3). The report states her “processing speed (i.e., efficiently processing visually presented information) fell within the average range, suggesting adequately developed speed of mental and cognitive processing” (Ex. P-L-18).
In another example, in paragraphs 33 and 34, the Head of School states that the Student’s math class is focusing on the development and reinforcement of foundational concepts and that goals in part relate to deepening his (sic) understanding of problem solving and demonstrating accuracy in math facts. (Ex. P-M-6). There is no mention that she is in a geometry class or that her substantive math goals are related to geometry (Ex. P-F-5-6). Later in paragraph 48, he states that the Student has done well on his (sic) assessments demonstrating the memorization of basic math facts (Ex. P-M-9). It is noteworthy that in her September 13, 2022 evaluation, her numerical operations, math problem solving and math fluency scores were all in the average range. In math fluency subtraction and multiplication, she scored in the high average range (Ex. P-L-32). The persistent inaccuracies render the affidavit of the Head of School unreliable and incredible.
A review of the Fall Report prepared by the private school also raises concerns. The program’s description states that “[e]ach student’s educational program is based upon an indepth understanding of his/her learning profile…” (Ex. P-E-1). The Student’s Focus teacher, [REDACTED], states in the Fall Report:
“Based upon her most recent neuropsychological evaluation ([REDACTED], 2022), initial observation and informal assessments, and conversations with teachers and parents, a working learning profile has been developed and will serve as the basis for remediation. Results from the Wechsler Intelligence Scale for Children – 5th Edition (WISC-V) illuminate relative consistency across all of [the Student’s] scores (Fluid Reasoning, 66th percentile, Working Memory, 58th percentile; Visual Spatial, 42nd percentile; and Verbal Comprehension, 30th percentile). The outlier in [the Student’s] scores is her processing Speed (9th percentile). As a result, she has difficulty absorbing novel information and scanning for specifics in a larger body of text and requires additional time to complete all academic tasks11… Her weaker processing speed often causes academic frustration for her…) (Ex. P-F-1)
I am unable to locate these scores anywhere in the record. As stated above the [REDACTED] report (Ex. P-L) found her processing speed to be average. In addition, the [REDACTED] report found the Student’s working memory to be a relative weakness in the low average range, not in the solidly average range as stated by [REDACTED] (see Ex. P-L-11,18, 31). The inaccuracies in the school’s working learning profile prepared by her Focus teacher make it impossible to determine that instruction was designed to meet her specific special education needs.
Finally, the September 13, 2022 evaluation report states that “due to her cognitive potential, she requires intellectual and academic stimulation and should therefore be placed in a classroom with cognitively similar peer group.” (Ex. P-L-21). The Head of School’s affidavit states that “students were grouped together because they all struggle with executive functioning, written expression, social pragmatics and academic problem solving.” (Ex. P-M-5). He further testified that the grouping is “really determined by skills the students need to work on… they all have similar skill needs, so we can remediate those skill needs in those main content area classes” (T:51). His testimony did not describe the class as cognitively similar or providing the student with intellectual and academic stimulation.
It is undeniable that the Parents have maintained the child at the private school over the last six years believing it to be the best thing for the Student, and her commendable
11 The Parent testified that all of the Student’s work is on time, and the evaluators stated that additional time to complete assignments should be considered when necessary (emphasis added) (Ex. P-L-21). achievements are but one consideration. However, based upon a thorough review of the record, I find the evidence does not establish the Parents have met their burden under Prong II that the private school provided educational instruction specifically designed to meet the unique special education needs of the student.
Given my findings on Prong II, I do not find it necessary to consider the equities under Prong III.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. that the Parents’ request for tuition reimbursement for the cost of the Student’s 2022-23 placement at the private school is denied.
SO ORDERED.
DATED: May 4, 2023
Lisa S. Rusk, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 11/03/22 9 pages
B. Notice 08/22/22 3 pages
C. School Contract 02/17/22 4 pages
D. Tuition Affidavit 02/03/23 1 page
E. Program Description undated 1 page
F. Report Fall 2022 Fall 9 pages
G. Focus Report Fall 2022 Fall 1 page
H. Report Card Fall 2022 Fall 1 page
I. Schedule undated 1 page
J. Attendance 02/03/23 1 page
K. [REDACTED] Neuropsychological Evaluation 05/18/17 12 pages
L. [REDACTED] Neuropsychological Evaluation 08/16/2022 39 pages
M. [REDACTED] Affidavit 03/20/23 10 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] The second and third extensions were jointly requested.
[4] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[5] The Head of School testified that the private school has a relationship with [REDACTED] (T:58-59). He could not recall a time when the [REDACTED] determined that the private school was not an appropriate program for a student referred there for testing (T:59-60).
[6] She actually scored in the high average range in listening comprehension and receptive vocabulary (Ex. P-L-33).
[7] On cross-examination he testified that there were 11 students in all of her classes, except math which is 10, and art which is 12 (T:50-51).
[8] Her processing speed is average (Ex. P-L-11).
[9] There is no winter progress report in the record.
[10] All of her math skills were assessed to be in the average range prior to the start of the school year (Ex. P-L-15).